19921208 TZHC Dar es Salaam4

Il'l' 'i':.:~--~ JIGd ~oOa'.i' :JF T,,J,J:31~1\JIJ.. 1.T r,;o~<Owuo V0l"13US !11\f G01nu--,v1i !'.'°!"~ . 1'.,'~T,T T ..,,,c,-,,,,ND J.4111 . A.\ l~lla t A. . .. • • • o !) • • • • o • • o • • ~ o o o • o o o • • o • o • J.'i~.;..-v JUJG!t1~NT j✓JCUJ~ I J• • The appellant CHi:.:U,:W Sl.iJAFHJI had unsuccessfully suod the .respondent NG0R0MA 1'iIICi£Re,, his f athcr-in-law, . in tho Urban Primary Court of Moro~oro, claimin8 shs.,300,000/- clama6cs for enticement of his wife. Mis.app0ni to tho I District Cburt of Moroc;oro was c1isrnissocl, hence this appcale i.t th~ trial tho appellant/plaintiff soueht to roly on the provisions of soction 73 of the Law of Marriage il.ct, as 1971 whi~h provides/follows: 11 7~(1) ii. husband or wife r.iay bring a suit for d1lr.lages a5ainBt any person who has, for any reason, enticed or induced his or hor spouse tc desort him or her. / I (2) A suit !JrouBht under this aection shall be uisnisscd if thc<court is satisfied that the conduct of the plaintiff has bcon such as to justify or excuse his or nor spouse loavirt3 the r::atrimonial home." After hcarinB both sides the trial-court was of tho view that the t,rif,r of' the nppcllant bud loft the matrimonial home bocauso. th~ appellant had denied her aaintcnancc while they lived together in town. im the tQ.:i.luro to ·oainta.in his wife was tha cause for· the 2 wifo,1s departure fro□ thc natrioor:.ia]. hor:io the nppeUant was hGld. to blame anc1 so his claim for daoa:;cs :for cntic.,,mant was dismissed under the provisio.11..s of section '/3(2,) of the iLav of I-inrrriag~ l.ct, 1971e On appeal to tbG ·]):.:.strict Court of Moro~orc the learned · Senior District Ma13istre.tc dici not c~: a]. with the issues as framed at tho trial or the crounds of appoa1- raised by the appellant. He held that the mnr:ria[!C between tho appoUant and biG 1r1:i.fe wc;s:• contrary to section 14( 1) of tho Law of Marn.age 1kt, 1971 and dismissed the app0a:R. upon finding thc:t the appelh.nt had married. his nephew o . To the extent- the.t the Y.oarnec1 Senio;., Distric,t Magistrate: caoe. to this conclusion without hear}.ng any evicl~rec on the point he was in crroro Ao.it turned out it iL the appeUnnt who is the neph<a1-ll' of the r0spondont r the lntt~r bGine U,.0 cousin of -~hG appellant's mothcro ·us the issue wns not canvnn.s-;ccl at the tri..nl the learned Senior District Mar5istrate should have invoked.the ~rovisions of section 21(1)(a) of tho J;~Bistrntes Courts Acts 1084 and hear addi- ttional cvic1encc before drn~1ing any conclusion on t/ie point.• I have carefully Gone through the c;viclenco at the trial and I am satisffod that the :Timairy Court .,~ame to the right conclusion. AU witnesses v1ho testified ha.vc tnJ.ked· about the effort the alders. ancl the church authorities made to reconcile the appollant and his wife fallowing a misunc1erstanc1ing bcti,won ·then'! The misunderstanding between them developec~ out of the ap1)ellant I s failure to provide· maintenance to hi.s wife whHe 'they lived to5ether in to1rmo It follows c- that the claim by the aiJpeUant that tho respondent had entic0d his wifo has no basis at al1 0 The firn:1inGG ana decision of/ the trial court cannot be faultccl~ b.cco~chng].y thi.s appeal fails and I dismiss it )llith c.osts. D01ivore··-; in chru-:,0.:::cs at l•lorogol!'o thi.s 0th day of DGcernber 1992 in tho prc0cnce of: CEi~L:~ S~Li\FIIH appellant in person NG0110li;ii I,JLli.1B r0sponc1ent in persono JUJG.;i! G/12/1902. . ...