Nkomanya v. Seni (PC) Civ. App. 24-M-71; 17/11/71; El-Kindy,

Nkomanya v. Seni (PC) Civ. App. 24-M-71; 17/11/71; El-Kindy,

The respondent sued the appellant for refund of bridewealth (21 heads of cattle) following the dissolution of the marriage between himself and the appellant’s daughter. The primary court ordered the appellant to refund 10 heads of cattle only but this was increased to 18 on appeal to the district magistrate’s court. The facts of the case were as follows: the respondent’s wife was a 15 year old girl who at the time of the marriage had not yet developed breasts and experienced the first menstruation. He contended that she was therefore unfit to be married and this was sufficient ground for divorcing her. The trial court rejected this last contention and held him to be the guilt party.

            Held: (1) “The trial court properly directed itself on the issues involved, and held that as the respondent divorced without giving reason; he was the guilty party (see Rule 60 of G. N. 279/63) and thus misapplied provisions of Rule 52 of G. N. 279 of 1963. The relevant provision is Rule 52 of G. N. 279 of 1963. It is clear, therefore, that the trial court had discretion in the assessment of the bridewealth to be returned.” (2) “In this case, there was no child of marriage. The bride was a juvenile. If what is on record is correct, she was immature for the duties of a wife, and the respondent must be taken to have known this as there was no evidence that at the time of the celebration of marriage he had not seen his bride. The appellate court thought that the amount was “too small” and increased it. Apart from the fact that it was a matter of discretion of the trial court which the appellate court should interfere with rarely, the assessment was based o the unanimous views of the gentlemen assessors and the trial magistrate, and in my view the appellate court should have had a better reason that the one it had for substituting its own opinion on the matter.” (3) Order or primary court restored.