19730422 TZHC Mwanza

IN Ti-i' HIGJ COURT OF TANh.lNIA ) AT MdN2IA. APPJLATE JURISDICTION (PC) CIVIL APFAL NOA 135 OF 1 97 1 (From the decj ion of the District Court of North Mare District at Tarime in Civil Anpeal No, 85 of 1971, Before A.G.G.Korrosso F. Resident Magistrate and Nyamwaga Primary Court Civil Case No.37/7 1 1 MWITA s/a gAIT,RA. . . , . . . . . . .. . , . . . . . . . . . . . . . . . . . . . . is I • AP'LLANT (Original Defendant) versus OBOGO s/o MAI\JYARA....................... . . • . •_......_._. . . . . R]Sp.ONDFN- (origin.ai. Plaintiff).L JIJDG1'14]N1. 12 JU: 1973 Kisanga J. I This is a second anneal against the decision of the Distric Court of Tarime awarding a claim of 22 head o'cattl'e against the anpollant beinga refund of bride r,rice received in resnect of his sister, The facts as found were that the resnondent paid 30 head of cattle as dowry to marry the annellant's sister; these cattle were received by the 'annell-ent's father, now deceased. Out of these, 3 died and the meat thereof was duly returned to the rspondent, thu.r leaving only 27 head of cattle with the father of the appellant, The marriage lasted for about 17 years but time and again the wife was in desertion and eventually the resyy-ondenth sued her success'ally and obtained a divorce from her. I find no good reason to interfere with these findings of fact by both cour'- below. The Prima'y Court took the view that because the marriage lasted for a considerably long time, the amount of dowry should no' be refunded in full. He reduced the amount by five and allowed the resnondent to recover only 22 riced of cattle. This view was unheld by the District Court and I can find no fault with such a decisiort. There was evidence that the annellant is the eldest son and therefore the heir of his deceased father. The District Court therefore found that the an'-ellant, being his father's heir s was liable to refund the cattle which his deceased father received as dowry, and for this decision tue court relied on paragranh 47(1)(A of the law of Perbon(G. N.No, 2 79/6 3)which provides that if the father is dead then the main heir is resnonsiblo for the renayment of bride wealth, 'I think that this decision is well founded and I eO no reason to interfere. The annellnt alleged that durin' the marriage between his sister and the respondent a child was born who later died. He theroforo contends in his memorandum of anneal that this fact shouJ, be taken into account in deciding the amount of bride wealth to be refunded.. The respondent in his eVidence, however, refuted the allegation and stated that durin, the marriage his wife did not gi'. birth and she did not conceive either. Thus there was only an allegation and a opinter allegation on this point so that there war. not sufficient evidence to establish the birth of a child. In thor' eircumstances there would be no justification for reducing further the amount of dowry to be refunded on the ground that a child was born during the coitinuanca of the marriage. The anneal ti harefora fails and the anpellt is tob ar the yost Appellant nresent, lunronresented. R. kisangae Respondent absent, 'unrepresented. JUDGF. 2 2/4/73. fl ------ - - - '-- ' ,,- - -