19720221 TZHC Mwanza

IN TB 1GE CCtJIIT OP TANZAITIA IT r Iil\TZA (pa) CI7IL.APL1 No. 22 OP 1971 (rrt the decisioa O the District COiiit o Fusoma at L1usoma, in Civil Appesi No. 188 of 1969) • . ITINBE s/c 1T,,T TA versus L•JACH!GE s/o CHAG'JCEt ........ RES UDGEIEEIfT EL-KIPDY, J.: - The app?ilant 9 M\ikwabe s/o 11vrita q was success 1y sued by the respondent, Liachage s,"o Cliaguchi, in respect of 67 heads o1 cctt1e Of these 28 heads of catt]e.were alleged to have been entrusted to th. appellant for safe custody and.39 were alleged' to be 'oride wealth paiu to thc- ooe11ant during he uarraoge of thc oppe11ants sister to tile opofluef U. The trs.1 court ordered the appellant to refund . -tho 67 heads of critle. The • appellant unsuccessfully appealed to the District Court of hueaa. According to the recorded evidence, the respondent we.s a nd caier to ugu area where the appellant and his 'sister aI father livod It is not in .issue,that the respondent entrusted 28 heads of cattle to the appellant and a9cordirip to the, appellant the respondent was entitled to his 28 heeds of cattle. But there is a serious ssue.,involving the 39 heads of cattle as the appellant alleged that the respondent was never married to his sister at ay : thu0. The respondent told the trial court that he married the appell on'tT a sisber in 1959 when she'.vias a girl and that he pai,d 39 heads • of.ccuttle,vji'ui.ch he handed. over to the appellant who was the lawful gurdieñ of his sister as their father was dc-ad, but there was no wedding ocreluony. He allegod that his viife I Nyankoma .d/o Llwita, lived with him for 5 months before she left him and has since not returned to hi-rn. Nor did he take amy steno to recoverhia dowry since 1959. He also 'cloi-med.that 1ie'.id not kruov why she left him. On the. other han, the appellant said that. NycciJuoma o/c .Hwita was never married to the reepondent, and that she ha beo iuc'ried bc Sus/o I'.Ivta in 1957 and that she is still living with him' sirce then. In suipor'L of his claim, he produced a marriage crtiuicate - Iisi Jdo 'i (Nihibi') Ho. 4131 (itth. A) which 'shvs that she wan married to Soiru s/c Mwita on the 13th of December 9 .1957. A in support of the resondent p .tho;a i' (2.1.2) 9 who did not witness the contraction of the maxTiage n dispute, a11e',ed that the responcent reported to hjin tnot ins wife has aosc-red but the respondent had made no such claim in his evidence. M'bota leo alleged that on the 3rd of April. 1962. the respondent produced his sister 1Xf ore him' and dam.nded to know from the respondent and his sister as to who was desert- ing the other 9 and that the ree'poI,entTbook his wif a then, but this incident is Pc-_ti 02 mentioned by re 'pondent nor by any ether witness. iTor coos botc mention which sister of he appellant was married to tile resnondent. In respect of this evidence, the appellant told 'the trial c.burt'that hbotdTs evidence was false although he did not..0 er d why i;botaS.,should, lie. In the first place, he said, if' his sister Iiyamkomc'. had been rua,rriod, hbota would h5v witnessed it as he rca "then the he.dman of the village', and secon1y there visa the marriage certificate which he produced in court. In my...ew, even if one accented what Mbota said his evi'.onco was oi-ay circuias nti 1 as Ie migi' hive se n the respondent living 'it se apoella ,T e-- sister, but he could not lmiov; whether they were in, fact married or not, sund certainly, as he 'admitted himself he imew nothing about heads of cattle whici'u we-re alleged to have been paid by the respondent. The other witness for the re€pongeat wa.slsi' (P.v!3) who said that one day he saw the resandent return a hide of head oi cctle rimch the iesonc1ent alleged to have be-sn o_ bend of ca le nich was said as bride wealth. This evicence, with respect, is inconsistent with the respond ent s claim because if anybody is to return anything it is the appellant and not the respondnt siuccthe allegation was that the hppellant received 39 heads of cattle. The next witness -,,.-as Sobod (P.7. 4) who did not: witness the wedding but claimed that 10 hc"rd t1lo singing Yi.1tiLch. took lcce when the rospo -icient was married to the 2.- appellants sister, and that this was in 1959. The rest of his ovidonoc suggested that the appellant! s sister subsequently left the respondent and was mrr:ied to one person before schf, becesie married to Semi.i Lhita Accordin to ithe Su 11r.ita. married het in 1962 althigh the marriage certificate showed that it was in 1957. Further: in support of his defence, the appellant called his sistcr ilyanukoma a/o h1vrita who denied being married to the respondent at any tiimi he said, i-L'i cross-exarti.pn, that she vias married to Sa.mu liwita in 1962 and that since then she has been living i,71ith Smiu Iiiita. On this evidence, trial court believed the vdencc of the respondent and his witnesses ai rejected the defence. It held th t the marriage certificate was forged one and using yenkoma 1 s evidence in addition to the other evidence of the respondent, hold that she was married to -the rosuondent and because she was..then living viith Su Mwita, the trial court assumed that she' was divorced and therefore the respondent should have full refund of bride price. In this court, as in t4c District Court, the appellant argued that the findin of the trial court '..'oi'e not supported by any evidence and that his evidence shied conclusively that at the time when the copellant to have married his sister, she vias married to a thIrd' person, He submitted that the marriage certificate was nc e forgery. H also argued thatiI his sister vies married to and subeecuon' divorced by the responO1.c -nt 9 the latter could not possibly have waited all this tine 'to claim his dowry, and that according to Kurya custom at least he would have claimed beck the dowry when his sister went through another ceremony of marriage but he did not go. And the respondent• who a.po axed also to argue his appeal, could not explain how it come to be that there was a certificate of marriage which showed as the appellant submitted. He sisply said that IIC was married to her, but ho adited that ho had no direct evidence to that effect. Yi'th duo respect to-both lower courts I do not see in what way' adi. A was a forgery. There is nothing, on the face •• o± it, hich suggests 'that it vies not a valid marriage certificate. If the • repondont was prepared to allege forgery then it was his duty to prove It. In this case, I see no evidence which supports the allegation of forgery. The document is -very old and the writing is fainted, and n thc absence of evidence, it cannot be said that it was forged ozio. The respondent or the- trial courts, if they were not satisfied with it, could easily have eke-eke it against the register of marriage certificates which was kept by the Baraza of iTyammigora in North Mara District. It is only then that it coul be said that it Was forged one if it did not agree with the kept record. I, therefore, disagree 'iith both lower courts on this matter. T1th marriag.: certificate is conclusive evidence of marriage between the appelicntt sister and Scmu s/a hiwita. I agree that Iyamukna d/o Mwita said that shç was married to Sani Uviita in 1962, but this ca1d be a mistce in memory. Apart hsom this, there ras really no satisfactory reason why the respondent did not lodge his claim for refund of his bride wealth soon after his wife has deserted him.' This delay on his part tends to lend credence to the appellrntts story.. In.my view, the 'evidence which the respondent led, was inadmissible in law as it was admitted to contradict the contents of a document.-. For tbse reasons, I find that the respondent did not establish his claim to 59 heads of. cattle. I allow this appeal on this point. Thera was, no dispute about the 28 heads of cattle. The respondent himself admitted that out of the cattle claimed 2 the appellant had refunded to han 18 heads of cattle. 'It does ilot appear that the lower corts took into aãcount this'admission ' Their order should have been.less 18 liLadS of cattle. As the,respondent has already received back 18 heads of cattle, he can only have, 10 heads' oi':eattle from the apDellant. ORDER: The appeal is accordingly allowed. The appellant should pay the balance of lO:he'eds of cattle. As the appeal is successful, the respondent should 'py.Shs. ioo/ as costs to the appellant. Do1vered On the 21st reba, 1972 - / Z.N. El-1ndy ZLst Pebruary, 1972. . 'JUDGE