19751001 TZHC Musoma

I If ii. O. .j'.JIL AT .TVL.NZ.t (Po) CIVIL LPPEI.L No. 73 OF 1975 (From the decision of the District Court of Niisonia at Musona in CiviI. Apjeal No. 81 of 1973 bef ore l.A.. Nyanakato, Esq., D/M and Ikizu Primary Court Civil Case No. 29 of 1973) STh[ON T/aG'oTmE , • • • . . . . . . . . . JPDELL/NT versus PRI0BASHINE..O...,............FSPONDENT JUDGMENT LUK]iNGIRA, AG.J..: The respondeiit succesfu11y sued his father-in-law, one Hare, for the refund of bridewealth. on 5th October, 1971 twelve head of cattle, which included one cow and one ox, were brought to the Court in fulfilment or partial fulfilment of the judgenent-debt. Unfortunately, the Court did not sit on that dar and the parties were advised to return on 10th 0ctober, 1971. On the latter date ten headof cattle only were brought. The cow and the ox were not there. Apparently the judgenent-debtor had exchanged them with the appellant. The respondent then Vicnt and attached the two animals from the appellant's home. The appellant filed objection proceedings which s are the subject of the present appeal. The Primary Court dismissed the objection holding that there was no bona fide exchafige but that it was all done to defeat the course of justice. The appellant appealed to the District Court which dismissed the appeal on a slightly different ground, namely, that the appellant did not prove that the exchange was bona fide • The appellant further appealed. At the hearing of the appeal I asked the respondent whether it was necessary for him to be refunded the original animals brought to court on 5th October. He replied that it was not but he was insisting on the two aninals because they were part of those originally paid by him. I have not been able to see the logic of the judgements below or the arguments of the respondent. There Was here evidence of an exchange which both courts ignored. Makongoro Hagare, the respondent's brother-in-law confirned to the trial court that indeed his father w who was then dead. -. had exchanged the two animals with the appellant subsequent to their first production at the court.. It is therefore undisputed that the appellant furnished consideration for the two animals. In that event it would be unfair to say that the exchange was carried out to defeat the course of justice for it was not denied. Regarding the respondent's argents, paragraph 41 of the Law of Persons allows him to claim the beasts originally paid as dowry, if they are still in the hands of his father-in-law. This does ñ.ot give him any right to claim the sane animals if the father-in-law has already parted with them and even if he can still locate their new hofle. In that event he has to be contented with alternative cattle. That is simple common sense because the father-in-law cannot be expected to hold on to the original animals in the unfortunate hope that his daughter would be'divorced.and that he would, be required to refund the sane cattle. I think he should be at liberty to deal with the dowry as he sees best, inOluding its disposition in exchange or sale in case of livestock. !.nd, speaking for myself, I do not think there was anything conspi- ratorial vhon the deceased produced ten cattle out of twelve. Had he intended to defeat the course of justice he would have sold ot bailed away his entire herd and pretended to have no cattle. All he needed in this case was an allowance of time to bring the balance owing.. 2