19711117 TZHC Mwanza

Iii Till HIGH COURT Di? TZAhIA AT IIZA Appellate 'Jurisdiction (pa) CIVIL APJEAL io; 24 OP 1971 (Pron the decision of the District Court of S]:uinyanga at Siinyanga in Civil Appeal No. 3 of 1971 before N. H. Bideberi Esq., District liagistreto - Original Civil Case io. 72 of 1970 of Nindo prirary court). • •: flLJ BUiEtiA IXOMANYA ........... .APPHtLAI'1T (ORI.IiTJiL I:4T) versus s. si ............. . . . rspoiDEiT (oRI:I:!1 ilAIrTII?) • JUDGMEW EL-KIlDY, J. In this aiit, the appc-Ucnt Bunc.akomanva, was sued by the respon- cent Sarik Saai, for refund of b±idewealth after th3 dissolution of ariage between the respondent and the appellantt .s daughter.. In the primary court, the appellant nasordered to refund 10 heads of ctt1o, but on a'pncal the a1a ount was increased to 18. headBof cattle. -It is against this order that the appcllnt took his appeal to this Court The respondent was married to Limi. d/o Bunela,.oncl he paid 21 heads of cattle as bridowcalth' Limi was then 15 years old. She hid not yet developed breasts and had not even experienced her first menstruation. The 'marriage was dissolved and Limi went back to her father, the appellant. During the heoriiig of this suit, the respond ant made allegations to the effect that since she had no pubic hsir, no breasts and bad not yet had her first menstruation, she was unfit to be narried,.and that lie considered that there

were suffic.ent grounds for divorcing her. The trial court, which tooia trouble to check those allegations with the medical officer, found that these natural defects were not sufficient grounds for divorce and fsund that the respondent was the guilty party The court, in it discretion, ordered that only 10 heads of cattle be returmod to the respondent. The latter was dissatisfied', and. on appeal,' tha figure was riod to 18 yeors. The tria.l court properly directed itself on the issues involved, end held that as the respondent cUvced without giving reason, he was the guilty party (see Rule 60 of GN 279/63) and tsliad provisions Th relevant provision is Th.ile 52 Di 279 cxj. 1963- of Rule 52 of G.N. 79 of 1963.7' It is clear, therefore, he the trial - court had discretion in the assessment of t1he bridewealth to be returned. In this case, there was no child Of marriage The bride alas a juvenile. If vihet is on record is correct, she was immature for the fties of a wife, and the respondent must be token to have known this as there v:cs no evidence that at the time of the celebration of iaarriage he had not seen his bride. The apDe11ate court thcught that the amount was U40Q 5r3.all end' increased it Apart from the fact that it was a matter of discretion of the trial -. . . court which th appellate court should iiiea-f ore with rarely, the assess- mont s based on the unanimOUs

vievvs of the met1eeeie assasss and the trial u istrate, in my view the appellate court should hove had a betterrcason than the one it had for substituting its own opinion on the L)atter. I an unable to see any reason for increasing the anount in the tbo circumstances of this case. As a result, I finci/ interforence wc unjustified, and therefore the judgment of the strict court i set aside and that of the primary court restored-in ull The appellant is allowed his costs or appeal and t3 fixed at .65/—. ORDLIh:— Appeal aflooed in full Prina'y Court judgment reaored. Delivered on the 17th November, 1971. • , • 1. ul--inay) JUDGE - 17/11/71'.