Chigoli Gomahingo v Wilson Mchane 1983 TLR 311 (HC)

CHIGOLI GOMAHINGO v WILSON MCHANE 1983 TLR 311 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

May 27, 1983

CIVIL APPEAL 47 OF 1982

Flynote

Civil Practice and Procedure - Bride price - Claim for refund - Pleading and procedure - F Rules of the Civil Procedure Code.

Family Law - Bride price - Refund of - Whether equitable where the claimant is a wrong doer.

-Headnote

The appellant was appealing against the decision of the District Court of Dodoma which enhanced the refundable bride price to 10 cattle and 9 goats while the Primary Court of Mvumi had ordered a refund of 7 cattle and 5 goats. It was on evidence that the Respondent's own wrong-doing led to the breakdown of marriage which he petitioned to dissolve in a proceeding which also joined the father-in-law (present appellant) for H purposes of seeking refund of pride price.

Held: 

(i) A petition for divorce is a matrimonial proceeding but a claim for refund is not; in the case of the former the jurisdiction, pleading and procedure are governed by the I provisions of Part VI of the Law of Marriage Act, 1971 while the latter is a normal suit in which the jurisdiction, pleading and procedure are governed by the relevant rules relating A to civil suits;

(ii) where a party claiming refund of bride price is the sole cause of the breakdown of marriage he cannot be entitled to recover even a portion of the bride price for it is inequitable that he should gain from his own wrong doing.

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Lugakingira, J.: The respondent was married to the appellant's daughter in 1974. For reasons we shall see later he drove his wife away in or about 1978. Then in 1979 he petitioned for divorce in the Primary Court at Mvumi and included in the petition a prayer for the refund of bride price amounting to 17 head of cattle and 12 goats.

He joined his father-in-law (the appellant) in that action. The trial court granted the divorce and having found that the respondent was the guilty party, it ordered the refund of seven head of cattle and five goats only. That was on 27/2/80. 

On the same day, the record shows more rather interesting entries. The appellant is on record telling the court: Nitamlipa mdai ng'ombe wake 7 na mbuzi 5 hapo 1/3/80 ingawaje binti yangu hakuwa na kosa lolote lakini huo ni uamuzi wa mahakama naridhika". It seems they touched him because shortly before the court had vested custody of the respondent's infant child in its mother and the respondent had been ordered to furnish its maintenance. He therefore replied "Sitaki kabisa hao ng'ombe 7 mbuzi 5 wake. Mdaiwa No. 2 ale tu mie nasamehe". But seven days later he changed his mind and appealed to the District Court contending that the refund ordered had been too small! According to him, too, the wife was the guilty party. The learned resident magistrate who heard the appeal agreed with the respondent in every respect and increased the refundable bride price to 10 head of cattle and 9 goats.

That prompted the present appeal.

I desire first to say a word on the question of procedure. As pointed out above the respondent joined in one action a prayer for divorce and a claim for refund of bride price. He was also careful to join his father-in-law in the suit. Perhaps that was a clever way of going about the matter but it occurs to me that it was improper. A petition for divorce is a matrimonial proceeding but a claim for refund of bride price is not. In the I case of the former the jurisdiction, pleading and procedure are governed by the provisions of part VI of the Law of Marriage Act, 1971 while the latter is a normal suit in which the jurisdiction, pleading and procedure are governed by the relevant rules relating to civil suits. I am aware that in Primary Courts even matrimonial proceedings may be instituted, tried and disposed of in the same manner as any civil proceeding instituted in such court and the provisions of the civil procedure rules made under Cap. 537 would apply. That I think is the import of Section 93 of the Marriage Act, but the provision goes on to state such rules apply mutatis mutandis, that is with the necessary changes having regard to the special requirements of a matrimonial proceeding. It is thus necessary to refer a matrimonial difficulty to a Reconciliation Board before petitioning in court but it is not necessary to do so for the claim of bride price. The evidence necessary to establish a case for divorce would also not necessarily establish a claim for bride price. There is therefore need to keep the two issues apart, and to dispose of divorce separately and first, as previously and constantly directed by this court. That said, however, I am satisfied that the irregularity occasioned no failure of justice in this case for there was no dispute as to the amount of bride price paid and there was in fact evidence upon which the trial court could consider and determine the issue of refund.

Coming to the appeal, the appellant contends that the appellate magistrate erred in enhancing the refund as he did so without considering that the marriage subsisted for six years and was blessed with two issues (one of which died). That however is not correct. The appellate magistrate did consider the two factors and even held the duration of the marriage to have been "very short". Nevertheless, he did misdirect himself in another and very important aspect. He stated that "it is not disputed that the respondent's (in this appeal the appellant's) daughter was actually the cause of the breakdown of the marriage" and this, unfortunately, is the complete opposite of what is on record. According to the evidence, the respondent's case was that his wife was in the habit of insulting him; that she had eaten two eggs; and that a chicken had disappeared and she had possibly eaten that too. Well, I should probably say that it is all amusing. But apart from that I think these allegations or any of them, even if proven, would not move a court of law to interfere in the sanctity of a marriage.

Divorce is a serious matter; its consequences go beyond the subjective convenience of the immediate parties. It is therefore a hallowed rule that neither incompatibility of temperament nor the trifles of human aberration would justify its being decreed.

It is comforting that in this case the trial court did not in fact grant divorce on the respondent's allegations - which in any case he did not prove. It did so on account of his own intolerable guilt which was demonstrated in the following admissions: He admitted that the wife had ceased insulting him prior to the filing of the petition; he admitted that he had boycotted her food, preferring that of his other wife; he admitted A that he had chased her from the shamba in an endeavour to prevent her form getting any food; he finally admitted that he had driven her from the matrimonial home as he did not wish to risk any trouble in future. He was only anxious to be refunded his animals. When then, the appellate magistrate stated that the wife was the guilty party, he could B only have had a different record in mind.

I agree with the trial court that the respondent was the guilty party and the sole cause of the breakdown of the marriage. I think that in those circumstances he was not entitled to recover even a portion of the bride price. It is inequitable that a party should gain from his own wrong. The respondent must have appreciated this too as demonstrated by his earlier decision to forego the refund.

As we have also seen, the appellant agreed to make the refund in protest for he thought he could not challenge the decision of the trial court. The justice of this case thus demands that the appellant be relieved of all liability.

The appeal is accordingly allowed with costs. The lower courts' orders for refund are set aside.

Appeal allowed.

1983 TLR p314