AHMED ISMAIL v JUMA RAJABU 1985 TLR 204 (HC)

AHMED ISMAIL v JUMA RAJABU 1985 TLR 204 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

August 22, 1982

CIVIL CASE 19 OF 1981

Flynote

Civil Practice and Procedure - Jurisdiction - High Court District Registries -Suit

instituted at B Tanga Registry while the defendant resides, and the cause of action

arose within the area of the Arusha Registry - High Court Registries Rules, 1961.

Family Law - Customary Law - Marriage under customary law - Cohabitation and

public admission of responsibility for pregnancy - Whether enough to constitute

marriage under C customary law - Law of Marriage Act, 1971.

Torts - Damages - Child's education cut short due to pregnancy - Whether parent can

claim damages. D

-Headnote

The plaintiff made Maimuna, the defendant's daughter who was a student at a

Teachers' Training College, pregnant. As a result her College training was cut short.

The plaintiff admitted responsibility for the pregnancy and was consequently made to

pay some money at an elders' baraza which convened and proceeded according to

local customs E and traditions. Maimuna remained with her parents at Same until

four months after delivery. She then joined the plaintiff at Tanga and they lived

together and cohabited for six months after which she, along with the baby, went

back to her parents. Some weeks later, the defendant refused to allow Maimuna to

re-join the plaintiff insisting that his F daughter was not married to the plaintiff.

The plaintiff then filed this suit in the High Court at Tanga, where he resides,

claiming damages for enticement of his spouse. The defendant counter-claimed Shs.

3,500/= as "damages for loss of expectation" and expenses incurred on his daughter's

education until it was cut short. He also raised a G preliminary point that the

plaintiff ought to have filed the suit at the Arusha Registry of the High Court which is

the registry for the area in which he, the defendant, was resident and the cause of

action arose.

Held: (i) According to the High Court Registries Rules, 1961, original proceedings in

H the High Court may be instituted in the Registry at Dar es Salaam or in the District

Registry for the area in which the cause of action arose or the defendant resides; as

Same District, the district where the cause of action arose and the defendant resides is

within the area for which the District Registry is Arusha, the suit should have been

filed at I the Arusha Registry;

1985 TLR p205

SISYA J

(ii) a marriage certificate, or an entry in a marriage register is prima facie A

evidence of marriage and s.43(5) of the Law of Marriage Act, 1971, imposes a duty on

parties to a customary law marriage to register the marriage; the plaintiff, who claims

to be married to the defendant's daughter under customary law, failed to perform that

statutory duty, and he also failed to give any evidence to show that he was ever

married as he claims; B

(iii) making an unmarried girl pregnant and marriage under customary law

rites are two different and separate issues which must be viewed and treated as such;

the mere fact that the plaintiff made the defendant's daughter pregnant does not

mean that he was married to her;

(iv) cohabiting, as the plaintiff did with the defendant's daughter and with the

C defendant's acquiescence from December 1980 to June 1981, is, in the absence of

evidence of marriage, not sufficient to raise any presumption of marriage under

s.160(1) of the Law of Marriage Act, 1971;

(v) maintaining and educating a child is always the responsibility of the

parent D and in educating his daughter the defendant was simply discharging his

duty; as such there is no loss upon which his counter-claim can be based;

Case Information

Order accordingly. E

No. cases referred to.

Judgment

Sisya, J: In this action the Plaintiff 'Son-in-law' is seeking to recover F from his

respondent 'father-in-law" Shs 21,000/= representing damages for enticement of his

spouse, plus costs of the suit. The defendant has denied liability to pay the said

damages on the ground that his daughter is and/or was, at the material time, not

married to the plaintiff. He has also counter-claimed the sum of shs.3,500/= being G

"damages for loss of expectation and School expenses which occurred when the

plaintiff made the defendant's daughter pregnant and unable to proceed with her

studies".

Para 7 of the written statement of defence raises a preliminary point. It reads and I

quote. H

7. That the cause of action arose at Makanya in Kilimanjaro Region in the High

Court Registry of Arusha and not Tanga.

It is common ground that the defendant resides at Makanya in the Same District of I

Kilimanjaro Region; that the alleged marriage between the plaintiff and the

defendant's daughter was solemnised at Makanya;

1985 TLR p206

SISYA J

and even the wrong complained of was committed at Mkanya. It is only the Plaintiff

A who resides at Amboni in the District and Region of Tanga:

5. As regards para 7 the Plaintiff states that the High Court has jurisdiction all

over Tanzania save the area under High Court of Zanzibar. B

True. There is only one High Court of Tanzania whose area of jurisdiction extends

throughout Tanzania save, of course, the isles. The Plaintiff, however, missed the

point. Rule 5 (1) of the High Court Registries Rules, 1961, as amended by Rule 3 of

the High Court Registries (Amendment) Rules, 1963, provides as follows: C

5. (1) Original Proceedings in the Court may be instituted either in the

Registry at Dar es Salaam or in the District Registry (if any) for the area in which the

cause of action arose of where the defendant resides. D

In terms of Rule 2 of the Principal Rules "the Court" here means the High Court.

Rule 3 reads: E

In addition to the Registry at Dar es Salaam there shall be a District Registry at

such places and for such areas as are set out in the schedule to those Rules ..... F

The said Schedule, as deleted and replaced by the High Court Registries

(Consolidation) Notice, Government Notice 194 of 1974, the place of registry for all

areas in Tanga Region is Tanga whereas the place of registry for all areas in the

Kilimanjaro Region including, if I may say so, Makanya is Arusha. It, therefore, goes

without saying that the proper place for suing in the instant matter is, of course,

Arusha. By filling the suit at G Tanga the Plaintiff, therefore, erred. I am, however,

satisfied that the error has not occasioned any miscarriage of justice

Without prejudice to the foregoing the case for the Plaintiff is that towards the close

of 1979 he fell in love with one Maimuna, the defendant's daughter. It is not disputed

that H the said Maimuna who, incidentally, did not give evidence at the trial for

either or both parties was then pursuing a teaching course. The two of them engaged

themselves in premarital intercourse and this resulted in her becoming pregnant.

According to the Plaintiff she then urged him to pay dowry to the defendant so that

the two of them could marry. Eventually a Baraza was convened at which the

defendant agreed that his I daughter should marry the Plaintiff. He, i.e.

1985 TLR p207

SISYA J

defendant, demanded a cow as dowry. The Plaintiff, however, paid out cash shs.

300/= A which represented a cow meant for Maimuna's mother according to the

tradition and custom of the Wapare, a tribe to which both parties belong. He was also

required to pay and he, in fact, paid shs.50/= as Mazoka and a further shs.173/= for

clothing his bride. Thereafter the defendant told him that he could pay the rest of the

dowry by B instalment. He, i.e. the defendant, also agreed to continue to

accommodate Maimuna until the end of her pregnancy. He, however, announced

that Maimuna was the Plaintiff's wife.

The Plaintiff told the Court that in August, 1980 his 'wife', Maimuna, delivered. He

paid C for all the delivery expenses. Maimuna and the child, however, continued to

stay at the defendant's home until December, 1980, when the Plaintiff went and

collected her and took her to Tanga where they cohabited peacefully. While at Tanga

their child contracted a disease which defied treatment by local medicinemen.

Eventually, upon D agreement between the Plaintiff, his wife, Maimuna, and the

Plaintiff's mother, one Asha Sekondo (PW5) who happened to be staying with them

at the material time, Maimuna took the child back to Makanya for further

management by traditional medicinemen. She left on 10/6/81. While at Makanya she

opted, with the Plaintiff's consent, to stay at E her parent's home, i.e the defendant's

place. The Plaintiff stated in his evidence that he followed his family at Makanya a

couple of weeks later. On his arrival he found his child in good health. It had

improved. He then told the defendant that he was going back with his wife. The

defendant turned down this proposal. He added that at most the Plaintiff could take

along with him his own child only whereas he, i.e. the defendant, F himself

remained with his own, i.e. Maimuna. The matter was referred to the local elders but

the defendant remained adamant. He insisted that each one of them, that is to say the

Plaintiff and Maimuna, should go his or her own way. He, i.e. the defendant also

demanded a refund of shs.3,500/= which he claimed represented the cost of educating

G Maimuna up to the time the Plaintiff made her pregnant. Eventually, the Plaintiff

brought up this suit.

The defendant, in his defence, told the Court that his daughter, Maimuna, was

dismissed from the Teachers' Training College, Tabora, where she was undergoing

training to became a teacher because she was pregnant. Upon making enquiries he

discovered that H the plaintiff was responsible for the said pregnancy. He made

effort to contact the Plaintiff through the latter's father, Ismail Mshihiri, and uncle,

Earnest Mshihiri. Eventually the Plaintiff responded to his elders' call. When

questioned he conceded that he was responsible for Maimuna's pregnancy. The

defendant then demanded what is I traditionally known as Ng'ombe wa Mama (a

head of cattle meant for the pregnant girl's mother). He also

1985 TLR p208

SISYA J

demanded a refund of all the monies which he had spent in educating Maimuna and

A which he assessed at shs.3,500/=. According to the defendant the proceedings of

the meeting which was held in connection with this matter were recorded on a piece

of paper which was tendered as Exh.P.3.

One Rajab Juma (DW4) said that he was the one who recorded the first portion

thereof. B The rest was recorded by Earnest Mshihiri (PW2). PW2, however,

denied this.

According to the said piece of paper the defendant was claiming from the Plaintiff

compensation for deflowering his daughter as well as making her pregnant,

traditionally known as Nyeku and Mazoka. He also demanded a refund of what he

had spent in C educating his daughter. The amount was then shs.1,750/=.

The defendant told the Court that what he had actually said was that he was prepared

to accept shs.1,750/= only if the Plaintiff was prepared to pay there and then. D

The Plaintiff paid shs.350/= representing Mazoka and the girl's mother's cow.

Maimuna delivered in August, 1980, while she was still at her parent's home. No

maintenance for Maimuna and her child was forthcoming from the Plaintiff. The

defendant told the Court that round about the same time his wife fell sick. It then

became increasingly difficult for E him to maintain his sick wife as well as Maimuna

and her child. He talked over this problem with his own father and eventually the

two of them agreed that the plaintiff should be made to maintain his child.

According to the defendant the quickest and simplest way of putting this into effect

was to permit Maimuna to take the infant to its F father, the plaintiff, which he did.

Maimuna then went and, as it were began to cohabit with the plaintiff. The two of

them were not married but, so that defendant said, they were simply living together

to look after their child. Later Maimuna returned with the child and informed him

that the child was not enjoying good health. Subsequent G diagnosis revealed that

the child was a victim of malnutrition. The defendant resumed maintenance of the

child but later complained to the plaintiff's relatives. It was then decided that the

plaintiff should make monthly remittances of shs. 70/= towards the maintenance of

the child. This was done for two months only and the plaintiff defaulted again. H

The defendant told the Court that finally he summoned the Plaintiff's father and told

him the plaintiff's short-comings. He also reminded him of his claim for a refund of

expenses for Maimuna's education. Plaintiff's father advised the defendant to refer

the matter to Court. He then filed a suit against the plaintiff in Makanya Primary

Court. He tendered the I

1985 TLR p209

SISYA J

official receipt on which the requisite Court fees were collected as an exhibit, Exh."I".

A The said suit was subsequently withdrawn after the plaintiff had pledged to marry

Maimuna. The next thing the defendant saw in connection with the matter was

Court summons and a copy of the plaint in this suit.

Both the plaintiff and the defendant called witnesses on their respective sides. Those

B who gave evidence on the plaintiff's side, including his uncle, PW2, and mother,

PW5, gave evidence to the effect that the marriage between the plaintiff and the

defendant's daughter was solemnised under customary law. The evidence of the

defendant and his witnesses is to the effect that no such marriage was or has ever

been solemnised C between the said two persons.

It is common ground that the marriage between the plaintiff and Maimuna, that is if

there is any, was not registered. No marriage certificate was tendered in evidence and

chances are that none was ever issued. It is, likewise, now common knowledge that

no D dowry in any form, or any part thereof, was and/or has been paid by the

plaintiff.

The second issue as drawn is whether there was any marriage between the plaintiff

and the respondent's daughter. The onus of proof here, naturally, lies on the plaintiff.

It must be conceded that under the Law of Marriage Act both payment or

nonpayment of E dowry and failure to register the marriage do not effect the

validity of marriage; see Section 41(a) and (h). The defence raised by the defendant in

the instant case is, however, not that the marriage was not registered and/or that no

dowry has ever been paid but, as aforesaid, rather that there has never been any

marriage between the F supposed spouses at all. In terms of section 55 a marriage

certificate or an entry in any register of marriages is prima facie evidence of marriage.

Section 43, and in particular, sub-section (5) imposes a duty on parties to a marriage

contracted according to customary law rites to register the marriage with the registrar

or registration officer G concerned. The plaintiff obviously did not perform this

duty and no reason has been given for his failure to do so. Now those who,

deliberately or otherwise, fail to perform their duty imposed by the law itself and/or

fail to follow the laid down and accepted procedures can only have themselves to

blame when things turn against them. I have had the chance of seeing and observing

the plaintiff during the several occasions he H appeared before me at the hearing of

this suit. He is by no means a raw citizen. One wonders, therefore, what reasons he

has for failing to register the marriage, that is to say, if, indeed, there was any

solemnised. As the position stands what evidence, it may be asked, is there to show

that he and Maimuna ever underwent a ceremony of marriage I albeit according to

customary law rites? Of course, in fairness to the plaintiff, there is his own word of

1985 TLR p210

SISYA J

month as well as the word of mouth of his witnesses to the effect that the said

marriage A was solemnised. On the other hand there is also the word of mouth of

the defendant and of an almost equal number of his witnesses to the effect that no

such marriage was ever solemnised and that the ceremonies that were performed

were in connection with the pregnancy which the defendant's daughter had outside

wedlock and for which the B plaintiff was responsible. On my part I see no reason

why I should prefer the evidence of the plaintiff and his witnesses to that of the

defendant and his witnesses. The end result is that the plaintiff has failed to prove

that he and the defendant's daughter, Maimuna, contracted any marriage according to

customary law rites. C

It seems to me that the plaintiff and his witnesses are confusing the issue of making

an unmarried girl pregnant and that of marriage under customary law rites. These are

two different and separate issues and they must be viewed and treated as such. The

mere fact that a man has made a girl pregnant does not, ipso facto, mean that he is

married to her. D

There are another factors in the instant case which satisfy me the more that no

marriage was indeed contracted between the plaintiff and the defendant's daughter.

One of this is that it is common ground that dowry is an accepted and essential

element of customary law marriage among the Wa-Pare. It is in evidence, which

stands uncontradicted and E unshaken, that the minimum amount of dowry payable

among the Wa-Pare is four head of cattle and two goats. The plaintiff and all his

witnesses, his own mother (PW5) and Mshenga (PW2) included, miserably failed to

pronounce how much dowry was demanded let alone paid. It is inconceivable that

talks could be had on marriage without F mention of how much dowry was being

demanded or payable. This is far and apart from the mode and style of payment.

Another factor is that it sounds inconceivable to me that after contracting the alleged

marriage the plaintiff could have deemed it fit to allow his "wife" to continue staying

at her own parent's home. The plaintiff himself said G that it was because she was

pregnant. Indeed she was, so what? It is possible that the plaintiff may have felt that

it was inadvisable for Maimuna to travel to Tanga in the condition in which she was.

If so then, why, it may be asked was she not told to move to his own parent's home?

It is in evidence which is undisputed and which I accept that H the defendant and

the plaintiff's parents are neighbours. In fact they live under the same cell of ten

houses! Upon contracting the marriage, if indeed it was, then surely Maimuna could

have comfortable walked over to the home of the plaintiff's parents and the plaintiff's

mother (PW5) would have been available if need arose for her assistance. Finally,

even when Maimuna returned to Makanya with the sick child, she stayed at the I

defendant's place. Again, I see no

1985 TLR p211

SISYA J

justification at all for this arrangement other than proof of lack of any marriage

contract A between the plaintiff and Maimuna.

As aforesaid the defendant told the Court that he permitted Maimuna to go and

cohabit with the plaintiff simply to ensure that the latter maintained his child. In all

the circumstances this explanation sounds plausible. The tendency among many

young B men of today to ignore their off spring living with their mothers, and away

from themselves, is a fact too notorious to escape judicial notice of this Court. It

must, therefore, be found as a fact, which I do, that from December, 1980 to June

1981 Maimuna did cohabit with the Plaintiff. In the absence of evidence of marriage

the period is, unfortunately, too short to raise any presumption of marriage under

section C 160(1) of the law of Marriage Act, 1971.

As a parting shot, although the plaintiff looks fairly knowledgeable and recalled

several dates, he did not mention the date he claims Maimuna married him. None of

his witnesses too disclosed the date of marriage. For the aforegoing reasons and on

the D evidence adduced in this case I am far from persuaded on a preponderance of

probabilities, that there ever was any customary law marriage, or marriage of any

other form, between the plaintiff and the defendant's daughter. This is enough to

dispose of all the plaintiff's claims against the defendant because the former has no

right to damages for E enticement even if I were to assume - which of course I do

not - that the defendant did, indeed, allure his daughter, Maimuna into leaving and/or

abandoning the Plaintiff.

I now turn to the counter claim. By it the defendant seeks to recover the money

which he spent on Maimuna's education. The basis of such a claim is that the

claimant has F suffered some loss. It must be conceded that in the normal

circumstances maintenance of infant children is the responsibility of the father. It is

also the duty of the father to educate his children. By educating Maimuna up to the

level which she had reached the defendant was simply discharging his duty under the

law. Whatever happened to G Maimuna the fact of the matter remains that she is

the defendant's child and she remains with the education or qualification which she

managed to attain. The concept of loss upon which the defendant can properly base

his claim does not, therefore, arise. For these reasons it goes without saying that the

counter claim too is without basis and it also therefore fails. H

In the final event both the suit and the counter claim fail and the same are hereby

dismissed. Each party will, however, bear his own Costs.

I Order accordingly

1985 TLR p212

A