19790307 TZHC Mwanza

-1 ñJ IN THE HIGH COURT OF TANZANIA AT MWANZA (PC) CIVIL APPEAL NO. 21 OF 1975 (From the decision of the District court of Geita at Geita in Civil Appeal No. 13 of 1974) BALYEILE JIAGOHO .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. APPELLANT versus LUSHIRI iASHAWFNGF RESPONDENT JUDGMENT SISYA, J.. This is a èecond appeal. The appellant was ordered by the Primary Court to pay back to the respondent five out of six head of cattle which were originally paid by the latter as dowry. His appeal to the District Couxt was dismissed. He is now appealing to this court. The facts of the case are somewhat pathetic and, to my mind, they reveal an abuse of its own kind a child'may be subjectd at the instince of the parent. I am saying this bearing in mind that this year has ber declarod the International Year of thn Child and it was inangurated in his Republic byno lesser a pson than His Excellency the President himself. The said ficts of the case may be suiimarised as follows:— Someti ne in 1973 the appellants f:nale child, then aged eleven years, was enticed by the respondnts male child, also aged eleven years to cohabit with him at his fathers plac. The respondent accommodated th 'couple.' 4eanwhile thi appellant got the news and procecied to the respodn!e hone. He found both children there. After admitting that his son was respensible for the enticement of the ppell'ant's daughter to leave her father's hone the respondant and the appellant then agreed to marry the two children. The appellant dended a total of ten heads of cattle - seven cows and three bulls. Eventually he settled at six animals which were given him and he, appellant, drove them to his home. Not surprisingly, hardly three months passed when trouble erupted between the Ptspous3s. 11 The cause of the trouble was hotly disputed. According to the respondent it was because the appellant's daughter was persistently ranning away from the "matrimonial home." The appellant, however, said that his daughter was actually chased away from her "matrimonial home" by the respondent's son on the allegation that she was lazy and further that she was not beautiful. The matter was referred to th reconcilliation board .. . ./2. 0 - 2 - but without success because, according to the appellant 1 although his daughter was prepared to rejoin her "husband" the respondent's. son was not prepared to take her back. In the trial court the Assessors found as a fact t1it it was the appellants daughter who ran away f'ron the 'matrimoiii1 hone' because according to Wasuku.na custom if the girl were indeed sent back by her 'husband' he would also have sent back her personal belongings 1 namely a basin (karai) and a pice of kanga which were hitherto still at the boys home. They then unanimously decided that iho appellant should return five heads of cattle to the respondent ad retain ond "ikiwa ya inaji" which I take to mean as a consolation. This decision was corifiraed by the District Court which was satisfied that it was the appellant's side which was at fault. Atti..juncture I cannot forebear to register any feelings about one feature common to the proceedings in the lower courts 1. which 1 find somewhat distressing and it is that both lower courts in the instant matter proceeded as if no law existed which governs the assocition between and female in matriiony. Yet by the time the proceedings were first brought to court, that is to say beforp th court of first instance, and more so the District Court, the law of Iarriage Act, 1971, which governs all kinds of carriage that may be contracted in Tanzania, had long since been in force. Both courts below appear to have been completely oblivious of the provisions of the said Law of 1arriage Act, 1971. Assu..ning, which I am prepared to do for the sake of argument, that thee did exist a marriage between the appellant's daughter and the respondent's son then the trial court, in enter- taining the suit for refund of dowry, as well as the district court acted ultra vires and therefore without jurisdiction. It has been held by this court as far back as 1968 in the case of Sungwa Fumbuka v. 1anyama Kasalucha (1968) H.C.D.4, per CknoB J., that where the parties to a marriage have not been divorced no refund (of dowry) whatever is allowable. This was explained further by my learned brother Kisanga, J., in the case of Tenga v. Zinzi (1972) H.C.D. 237 in which the learned judge said and I borrow his words with gratitude:- "A husband seeking the refund of bribe wealth should first file a petition for divorce and if he 3 obtains a decree, .;h.ri the court can proced to consider the issue of a refund of bribe price which is incidental to the main issue of divorce.", In the instant matter clearly no divorce had ben granted prior to the institution of the proceedings which gave rise to this appeal and as far as I am aware the position •reiiains the same to date. Therefore by allowing soiiething which, in the circuistances is not allowable, the lower courts acted ultra vires. Leaving this aside, section 13(1) of the Law of 1arriaçe Act 9 No. 5 of 1971 provides as follows:- "13. - (i) No person shall marry who, being male, has not attained the apparent age of eighteen years or 9 being female, has riot attained the apparent age of fifteen years." As mentioned earlier in this judgment both parties to the so called marriage, that is the appellant's daughter and the respondent's son, were each aged only eleven years at timi of the marriage. Their ages were given by their own rspective parents. Both "spouses" gave evidence at the trial. is a matter of fact the record of proceedings of the trial court shows that the respondent's son was not even per;nitted to give sworn evidence because he failed to satisfy the trial court that he appreciated thi piety of an oath. The question that naturally arises now is what effect does the fact that both parties to the 'marriage' under querry were far below the mini;nwn °g p. for mairiage have on the said ;narriage. The answer is provided by section 38(1)(a) of the Law of i1arriage .ct, 1971 which reads: "38 - (1) ceremony purporting to be a narriage shall be a nullity - (a) some where leave hs ben granted under subsection (2) of Section 13 1 if either party thereto is below the age for marriage.". Subsection (2) cf Section 13 of the Iai:provides as follows:- "13 (1) (2) Notwithstanding the provisions of subsection (1), the court shall, in its discretion, have power, on application, to give leave for a marriage where the parties are, or either of them is 9 below .... .14. 1-, - 4 - the ages prescribed in subsection (1) if - each party has attained the age of fourtaan; and the court is satisfied that there are special circunstances which make the proposed marriage desirable." What can be gatherod from all this is that in Tanzania nobody below the age of fourteen years has any capacity to marry and that even then a ;nalo who has not attained the apparent age of eighteen years and a fomale who has not attained the apparent age of fifteen years can only marry subject to two coni1iOnS being fufihled. The first being that each par j has attained the age of at least fourteen years and the other is that a court of law has expressed sa tisfction over the existence of some special oircumstancos necessitating a marriage. In the instant matter not only that leave was not sought under subsection (2) of Section 13 of the Law of ilarriage Jct, 1971 but. that oven if it were sought the some would not have been granted as both parties to the. "marriage" were, if I may say so, a little more than infant children. It is in this connection that this court decries the way both lower courts proceeded with th matter as if the Law of Ylarriage Ict, 1971 did not exist, Perhaps in farriess to the trial court I should reproduce the last but one endorsement in its judge.nent. It reads:- "Jmri:— Onyo kutoka Nalakama , ni kwamba haikupende kuwashtaki wadaianaokuhusu kuoza watoto wenye umri mdogo, na lazima mtindo huo ukomeshwa." In arguing out this appeal before me learned counsel Ylr. Aatemba who appeared for the appellant argued that it was customary for ybung persons to "marry" after payment of cowry but continue to live seporately, each with his or per parents, until they were of age. The learned counsel, ccnoeded however, that both the lw of iarriage Jct and the Declaration of Local ct.Customary Law, GN. 279 of 1963 is silent on this type of marriage. Whether or not the proposition by the learned counsel for the appellant is correct the fact remains that the situation described by him is not on all fours with the facts of the instant case. As aforesaid dowry in the instant matter was not paid for any future cohabitation but a current once At any rate I have a feeling that what the learned counsel had - 5 - in mind was the concept of betrtbal which, indeed, is customary to aLmost all -tribes, Tha evidence in the present natter is iiot that the respondent's son was betrothed to the appellant's daughter but that the two of them married. However since both of them had no capacity to marry an account of their tander ages the ceremony they underwent wasp therefore, void and the purported marriage itself was a nullity. The question that I have to turn my mind to next is what beoowea of the dowry which was paid in respect of the marriage which turned out to be null and void. To my mind since tho basis upon which the said dowry was paid is erroneous and, as a matter of fact, it was, as it were paid for not}ing at all it is therefore recoverable. I would therefore order that all the animals which the appellant received as dowry froi the respondent should be restored to the respondent. If the appellant so wishes and subject to thex'ules of the law governing limitation of actions he may sue for damages for entice ent, However, as for as this appeal is concerned it is dismissed. in its entirety. The appellant wi?1l costs, F FRTIFIED TRUE COPY OF THE ORIGINAL. - S / ; DISTRICT REGISTRA •'iWiNZP