19750214 TZHC Mwanza

1 ---t - IN THE HIGH COURT OF TANZANIA AT MWANZA (PC) CIVIL APPEAL NO 0 54 OF 1971. (From the decision of the District Court of NORTH MRRt at ThRINE in Civil Appeal io0 Before S N0 KiJI Esq 0 , . .... DISTRICT MAGISTRiTE CHACHA NWIT4... 000 00 0000 00 000 cocoa... 000.a c000.c,0APPELLANT - . . . -.'- •- -•• - 0. •.. versus MOGESI CHAC-HA0000000 0 00000 00 0.6000006 0 0 0 0 0 00 0 00000.O.O..RESPONDENT -0oO-. ... S •,, • .5 • ... .. ... 5 JUDGMEN.'...'. :• . •' MFALILA, J: : . . 5 The case from which this appeal arose is of the most urnisual kind. The respondent a woman named MUGESI d/o CHACHA had two daughters by het previous marriage to one Msai tribesman named Rwaksbro Thesc two .. daüght serenaned Robi'ñd Boke Whn the respondent's marriaê with he±' fist husbad'aiinEodifflduI€ies, se - tah' back to Tanganyika with one of her daughters Boke- leaving 'Róbi in Kenya0 When she arrived in Tanganyika, estimated to be 1939, she met the appellant. 'CHACHA-s/ö' TJITA with wioni ' she fdrtned ri attach- ment and they started living together0 Later the second daughter Robi joined her mother and naturally lived with her and her step father the appellant0 They lived in this state for a number of years until this relationship somehow ended0 It was then that the appellant filed a suit in the Sirari Primary Court claiming from the respondent everything that she had spent while staying with him and also his estimated expenses he incurred on the upbringing of the respondent's two..daughters0 He claimed a t.tal of 24 13 goats and Shs. 5,760/= he incurred on the upkeep of the two daughters0 The Primary Court found in his favour but reduced his claim and awarded him 20 cows, two goats, one sheep and Shs0 3,500/= The respondent appealed to the district court which after analytically dealing with the evidence allowed the appeal in part and allowed the appellant to recover five (5) cows only0 From this decision the appellant appealed claiming that he should be allowed his full claims0 What prompted-me to say that this case was of the most unusual kind is that the basis of the appellant's claims against the res- pondent is unknown0 It is not known whether his claim lay in con- tract or customary law, for he proved neither of these0 His evidence which he gave in the Primary Court read as follows in its full text: "Huyu mdaiwa (the present respondent) namdai ng'ombe 24, Koo 9 Nitamba 6 dume 9 na malisho ya watoto 2 kwa nrida wa miaka 8 nadai Shs 0 5,760/=, na hizo ng'ombe nadai ambazo alikuwa akizitumia hapo kwangu na shahidi wangu ni Butube Ohero, Maswi Narwa, Kirario Ngwena, ni hao tu." Aside from the fact that, these bare assertions did not disclose any liability contractual or customary on the respondent's part, the three witnesses whom hd named and called, did not advance his case any further. In the district Court, an attempt was made to elaborate the case as is so admirably set out in the judgment by the district Magistrate, but even here one thing is missing0 What was the basis of the respondent's liability? It appears that the appellant was - -- • -, • S 0 . -• S S S -2- quite serious in his affair with the respondent f or he paid some token bride price to her brOther Matiku0 It may now be asked whe- ther the respondent was livina with the appellant on the understand- ing that she was liàblè to refund everythinã she and her dhughters used and expended in the appellant's homestead0 If not how would the appellant uprt his claims against therespndeit 0 To cite some specific examples as found by the district Court and awarded to the appellant, can it ben.id that when the ar.pe'llant sold a cow to raise money to pay for the respondent's fine (assuming there was such a thing.fo. it. was never proved) was it within th understanding of the parties that such cow or its value was refundable? The same question can be asked in raspectofall the claims by the appellant against the respondent0 For these reasons I am satisfied that the appellant did not prove the basis of his claims againt his former wife the res- pondent 0 All I can say from the evidence is that the appellant wanted to have his own little revenge for the respondent's act of leaving him0 Apart from this desir 'ffdV'h "1 can find no other basis f or the appellant's claims0 He was not entitled to anything pn . nothing should have been awarded in his favour by either of €1ë ...iTts below 0. ., . . ..... .. . ... ... ..., .,. . . For these reasons th ppeal is dismissed, ut as there was no cross-appeal, I will not d2.sturb the judgment of the district Court which would otherwise .ha•vbeen.set. asidp, : ,ap wqll the..judgment .. of the.Prjmary.Court 0.,, .As..jieier party appeaed7I. wili.inade..no. o'Øer., to...costs r ruso • L MFhLILA . 14thFEBRuAR, i975 . .