Tenga v. Zinzi, H.C. (P.C.) Civ. App. 17-M-72, 14/7/72.

Tenga v. Zinzi, H.C. (P.C.) Civ. App. 17-M-72, 14/7/72.

Held:   A husband seeking the refund of bridewealth should first file a petition for divorce and if he obtains a decree, then the court can proceed to consider the issue of a refund of bride-price which is incidental to the main issue of divorce.

KISANGA, J, - The respondent sued the appellant for the refund of 17 cattle being bride price he paid in respect of his wife. The primary court allowed the claim only to the extent of 5 cattle plus Shs. 15/- He appealed to the district court which increased the award to 14 head of cattle. The appellant has now appealed against that decision.

The respondent alleged that his wife left the matrimonial home and went to stay with her brother, the appellant, for the purpose of receiving medical treatment. After some time he approached her and asked her to return home but she refused. The appellant in his defence said that his sister became ill but the respondent, her husband, would not provide the fare to take her to hospital she therefore left the matrimonial home and went to stay with him. The respondent came to fetch her back but she refused on the ground that he refused to provide the fare to take her to hospital. Whereupon the respondent agreed to leave her at the home of the appellant to continue with treatment. Meantime the respondent instituted this claim and this was a surprise to the appellant. The appellant’s story was fully supported by that of the respondent’s wife who said that she was surprised that the respondent brought the claim because she has no intention of parting with the respondent and that she was ready to go back to him provided that he does not refuse to take her to hospital.

            In the case of SUNGWA FUMBUKA v. KASULUCHA, (1968) H.C.D. n.84 it was held that a claim for the refund of bride price cannot be sustained unless there has been a petition for divorce. In the present case the claim was simply one for the return of brideprice but it is quite clear from the evidence that no petition for divorce has ever been brought to dissolved the marriage for which the bride price was paid

At some stage the primary court magistrate appears to have treated the matter as if it was a divorce suit. In his judgment he said, “After negotiations she (the respondent’s wife) has consented to go with her husband but her husband has pressed for dissolution of marriage”. It may well be that the respondent expressed a wish for a divorce but that was a mere wish or desire and the court could not consider it because there was no petition for divorce before. It. The proper procedure is that the respondent should file a petition for divorce and if he obtains a decree, then the court can proceed to consider the issue of a refund of bride price which is incidental to the main issue of divorce.

            I am therefore of the view that this suit was brought prematurely and it ought to have been dismissed. Accordingly the appeal is allowed with an order that the appellant recovers his costs in this Court and in the Courts below.