19711211 TZHC Mwanza5

-- -- - ev II TI-I G I 7rT iuJ,T , zL,N,1IAT .!HZL Appellate 3ti-dieioia (o) clvii AI NO-o 68 OP 1971 (Ira the decision of the district court of Lhioia in Civil A;ea1 ITo. 27 c2 .1971 b±o±e Au Lwc1onga Esq.1 Ditii.€t Mgistratc 0riina1 Civil Case No ctf 1970 of the rang piLsx7 cou.rt) •. LUJSA L-flaRITI . .. . . a ver5 A.- ai 7.i. . . A.PPEIlLiTL • 1I&M:T KISAhGL, Ag.J The appoiloxrt Musa Likiriti sued the respondent in the .priiacxy court Kukircngo, LIu.sona district, for the recovery of 21 head of ctt10 plus 5 goats. He succeeded, but on appel to the diEtct cott he lost and h has now appealed to this court Briefly th facts were that the pp-e1n brother, now decee.se was ni±ied to the respondeit sisto'., one.:Bwsnwc, and there were two 01-±16--rh of the narriage who, hbwever., died' 1o11cviing the dcch of Iciasana t husband, Bwaa, in accordance -dth the custonary law, beamo the wJe of a brdther of her deceased husband. That brotnr also died and ôhe becciid the wife o± yet anoticr brol-,iiet of her firet deceased husband and then that brother also died in 196, she bacano the wiie of the appcllarrt, They lived toehe± husband and wife until 1970 whefl BvTa16tha went awer because the appellant cens-tndtlr ill—treated her for ni rsason Thranana went to live with h' brother, the reeipondcnt, and the appellant then filed t1is action-to rocovor.tho property as indicated above which- ws paid as br±dcpce by his brother s the original husband B-janana The prinary court judgment was a aajori -tl deciion, ;iitL the aia'.stratø hisiseli disenti Th two sossos who eat with bin hold -. tet ccoDding to Zanaki eustOae7 law whore the husband dies t his widow iunt be inhited by his rotho, end should ee refte to be so inhi4e1 - than the brideprice W1ieh was psi4 in respect of hcAst bs rcfundo The priiaey court Liagistrate j in his disatig opinion, laowavor, e11ëd on paragraph 62 of the Law of.Persons G.14ITo27-oi.-1963 hich is applicable to 'lusoma Djstrit That paragreph povidoss "The rthIow is to be asked If she agrees to be ialesn vcr by the brother of the c1eceaod, If the - rc:ftWei the bridepricn is not refundea d tiiC WIdOW is free to go end live with her brothers. ' With roat respect to the pr.ney court nagistrate, I thir: that- this paragraph was not applicable here because the widow had sbroady :.iade up her r.iincl to be the wife of the appellant, asi she lived v;ita bin as his viiie fron 191 till 1970 when she decided that she no -1oicr wentod to liva with hin. In ray view s this pergraph should be cored to acan U 't the widow should exercise her election as soon s it is pract icable ftcr 12cr hilebart s death, and that once she has decidedH to accét the doccased s brother as her husbcrd then she qennot subsetintly elect to leave him on the stran'th of that saie provision of parqraph 62 This vj.ev7 would appear to be fair because it seeks to ensue the succeeding hur,;hand some reeas'xc of certainty cnd stability. in relation to the widow so that he can plan his future life acordii'gly I an therefore of the view that the appellant's claim could not be defeated by the application of paragraph 62 cited above The district maistrate, howeveri while upholdin the opinio,n of the priar.court uaistrate, relied di pereraph 52(b), of the same Law of Prsbns m That parcraph, makes proiision 'Jw refunding bricloprice in cases of divorce and it roads:- dThoro a Lxr riage cones to an end, viitiout the htisband or the wife dv'rci n any specific grounds for it, trieri if i'e: c are any c1ildcn of the narrio, viho .th .er alive or deco, oriac.price can never be rofirnded ..," That paragraph presupposes that the ua riago. has come to an end fol1owi1i a djvorc But in the imstcnt case the r:cage i, still. subsisting. hoc misc tho appellant, by vixtuc of- c - pncxy, law ) . suec'oedbd. his deceased' brother and became the husband' of the srvvivddow. 1.9 therefore think that' paragrap 52(b) v?nich was' relied on by e' district tigistTate was cls,o inapplicabl'e'. In .th• case. of' SUiGWA'. J.tJKt vs MA1'IY1.10A. 1SIUCHA. (1968). HC;D 84 the : bu.sbaiI' sued for. tli:c :aotcry of brideprice on the ground';t1at,his. wife desored him CrossJ b'ld thct the narriae between the .pe2'tjeS\7aeSti1l subsisting ,and the parties were not divorced, so that no ref]ad 'of 'bricprie.v;as'allowble'. circumstances of the present case are siiiilar, and I,thii'fl:'that the. same principle should apply so that the appellant's claim fOr"rofunG1'.'ofthc bride—price could not be entertained-unless and untilha. 11.braug1it divorce preedins aginSt his wif, I would therefore diiss the appecl,with:o'tS. Lr7A1Tz., - (R H .Ii'eaia) ,. 11,1241971. AgJUDGE fr'