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JJ _ IN TTTO TGIICciL CIL :.:.J.;1 12 C' 179 (From the decision of. the District Court of Tukuyu' 'at. Tukuyu in Civil Appoal No. 49 of 1979) 8 J3J70JL J.A. 1IiLLJ. ESQ, DtSTRICT i'IAGISTLATE GEORGE iTllIUUGB...... 0.. APPELLANT (Original Defendant) Versus • . ?MAICYOLOLO I.iASEGE RESPONDENT (Original P1ainti'f) - J U B G N T This is an apoal from a decision of the district court of Rungwe district setting aside the decision of the Urban Primary Court, Tukuyu, and ordering a retrial. . In ordering a retrial the learned district magistrate said: "After pernoing the record and memorundum of appeal, I quash the whole proceedings in the Tukuyu Urban Primary Court Civil Case Noi 151 of 1978 and order that the case should be heard denovo by another Magistrate under section 17(c) of the Magistrates' Courts Act of 1963, with the same court fees.' The learned district magistrate went on to say: "The trial primary court magistrate should bear in mind the undermentioneci points etc:- Whether the appellant's daughter had joined the respondent as a wife and husband or not; Whether the appellant' s daughter was engaged by the respondent, and if it is so who started to break the engagemont (vide section 84 of GM. 279/63) Whether the appellant has got the right to • claim (counter—claim) from the respondent for a bull which is knom as "duine wa kinyango under .' the Wanyakyusa Customary Law or not (vide section - 13 of GM. 279/63; Whether shs. 210/ was paid as gifts (Kinyago) under t1eWanya1, yusa Custo:..ary Law or not." 1 - With unfeigaed respect to the learned disitrict magistrate, I find myself unable to uphold his decision. But whys? That -I will tell,. In my settled view all the four issues the primary court was called upon to look into were determined by the court. The primary court answered the issues - directly or indirectly as follows: 13 The roe ondent' s daughter had not lived with the appellant as man and wife. D The respondent' o daughter was engaged to the appellant. it was the respondent' s daughter who broke the contract. Issue The respondent had no right to claim one bull from the appellant, as the respondent' s daughter and the appellant had not, contrary to what was claimed by the respondent, lived together as man and wife. - r The ohs. 2101= was paid as gifts on the understanding that the appellant and the respondent' s daughter would become partZcrn in marriage. I can see no reason to fault any of those four answers. In my judnent each of those answers is fully warranted by the evidence on record to which the judgnent of the primary court makes adequate reference. I should not, I think, part with the case without drawing the attention of the learned district magistrate to one important point. It is beyond the province of rational controversy that the entment of the Law of Marriage Act, 1971, was a great social revolution. The provisions of that Act mustbecrupu1ous1y given effect to by courts otherwise the social'revoiution will turn out to be a new tree without fruits. In applying the provisions of the Act, the courts nist remember that the Second Schedule to the Act was intended, inter ali, to bury some of the rules of customary law relating to engagement, marriage and divcrc. The Schedule amends the Judicature and Application of Laws Ordinance by adding a new provision, section 3A, which readsm "(3A) Notwithstanding the provisions of this Act the • rules of customary law and the rules of Islamic Law shall not appiy in regard to any matter provided for in the Law of Marrtage Act, 1971." The Law of Marriage Act, 1971, is not silent on what one may corape- ndiously describe as engagement gifts. Section 71 of the Act deals with that subject. .4 - 4 4 -- 2 For te reasons I have given, albeit very briefly, I allow tho appeal s recall tIio dietrict court' s decision and restore the primary court's decision 4 The cOsts both in the district court and in this court will, as justice and conrnon sense command., be refunded by the resnondent. It B. A. SI\!'IATTA JUDGE, Orderz This judnent is to be forwarded to the district court which is hereby directed to read the seme to the parties. - - - B. A. S.AIvIATTA JUDGE. 4