19720425 TZHC Mwanza

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AT IANZA (pa) CIVIL AT?EAL No 46 OP 1971 (Pri. the decision'o Ie Djstric Court of Tarinie at Tarisee No. 239 of1966 — Before S.IT, Kaji, Esq, DirietMaPitrGe t. & Shirati P.C. C.C. No. 192/66) ..'HAGETALtPjTGElE ........... APE1LAI'IT NASHON PLIRO . ..........RESPOUDEPT

TUDENT JONATHAN, Ag. J.: — This is a second appeal following a decision o f the Primary Court ordering return by the appellant to the respondent of do\ry paid by the latter in respect of the pp11ant!s dauter. - The facts nd cjrctristcaices were both pathetic amd , umsual. It is un- dimpti.ted that,. some time in 1965 , the respondent il.arried the ppellant a daughter and paid .14 head of cattle as brideviealth. It Was conceded bzr the respondent that before they married the appellant informed him that his daughter lice some sexuci ebnomclity in thct she \Ioald not have nen 'u .c1 periods nd-' thet this had been the cause of the break-up of one o.c o marriages she had previously one into. Even sothe resjiondent iient ahead nd.nar1ied her, the parties hoping, no doubt, that the abñbrmality vould in time be treated. Acording to the responeent, to his disappointnint, . he;diovcrod soon after the marriage that the abnoimality was very rauch more sieGT 110 had ;ben made to believe;. he respdent' s daughter could not conate tho marriage D)parenLly becuse her se'ual organ was uric ercievelopoc "xie would allow of no intercourse. lIe duly reported this t17eiy to the cpi& aaL, i co1labo_cion iith vha.i effoits were then made to get her ooadii,on coccteu. rowever, these efforts ;ere fruitless, hence the respondent's decioon to return ]cr to the ppel1nt and to claim return of the dowry he

had The cppe11ci .rosisted the claim and in 1966 the respondent filed i'c a 'it At the trial the appellant deraed that his daugntor lied suci aDnorialitl as was aIcged by the respondent and suggested that she should be medically examined The suggestion vic.s accepted and his daughter was xamincd by a qualified doctôi. His ed that the sexual orgafl of the cppellant' a daughite was too small forrepo4=elations and that she was barren. In viov of this I'äport the trial LIt.gistrate and the asseasors assisting him :iad no difficulty in finding for the respondent and ordering ren of the dowry. The appeal to the District Court was unsuccessful. The meuoranum to that Court raie'3. the grounds that the respondent had accepted his daughter for what id that in any case, as they had lived together for two and a half yegxs., it. was iiot fair and proper to order return of all dowry. Both grounds wc±& rejãctad. As regards the first, it had been coaunoii ground during the trial that th appellant only told the respondent tht th unfortunate woman vioulcl not have menstruation. The appellant could not, thereforo, be heard to saythe respondent married her imowing she was incapable of consummat- ing the union. - The second ground was not raised during the trial. In fact the appellant seems to have cuitted that his daughter stayed viitli the respondent for six months only. I have no doubt the

appeal, based as it VmS, on the abovo grounds, was properly dismissed. The present appeal was admitted to hearing by a brother Judge on:Ly for consideration whether the marriage was void or merely voidable. Thia is significant becanse if the latter was the case, the suit should have sought to avoid the marriage, and the Court should then have made a formal order an.xTo.1l- ing it prior to ordering return of brideviecltha - i.. L '1 - - It coons to have boon the view of both the trial Iviagictrate and 111O Assessors that, ccoding tothe customar - law of the parties, it is no flaioe thc.t whicfl c,7Lqiiot be., cons nactea. The learned trini appears to have uphelu this the law. I cannot pretend to he better placed than was the trial Court to knOw the law pertaining to the Imatter whether such marriage is void or only vcidabh a. it is not open to this Court to review the decision of the trial Court ua less it appears doubtful if there were rules of custanary law relating to tin particular matter. Here it is not clear if such roles obtained. So far as I cii aoare, our tribal communities do not i:iske a. distinction between 7010 and voidable Liarriages, and in the present case 9 I can hardly imagine that the trial Court hd such a distinction in mind. I think that, in the circumstances this Court would be entitled to consider the point according to rulea of natural justice. Basically,

customary marriage is an agrednent to have two people of differen: sexes liv together as ua.fl and wife. I would add that, almost invariahly sexual intercourse is conteraplated in, cud may even be the guiding purpose.od, such union. That said, however, a marriage is not void buly because it cannot be consummated. A situation can be envisage whore, for one reason or another, a husband decides to keep his wife notwithstanding knowledge subsequently of her congenital incapacity to consuimeatc the mar age. In such a. case it would be unthinkable for a1V one to say that they are not legally married, for that would disturb such rights as may have acexuod to the parties by virtue of their unIon. Lack of capacity to cunsum:iato can c: be a gToünd open to the party having such capacity to seek to set aside the ' marriage. I cm of the view, therefore, that the marriage under considoraticr was not void but only voidable. That being so, there should have bema, as • alreay dhsorved, an order anmlling the marriage before ordering return of • the dov7. The facts as fsund by the Court of first instance clearly entitled the respondent to en erdor setting aside the marriage, effective from the da.te of • such annulment. Being satisfied, as I an, that that court would have made • such an order,. and having regard to the provisions of section 25 (c) of the • Hagistratos' Courts Act which empower

this Court to make an order a court of first instance mig1t have marIe, the martiage between the respondent and the appellantt s daughter is hereby annulled. This annulment is to have rostros.- pective effect from the date of delivery of the trial eourts judgØacni. As the Primary Court would in any case have ordered return of dowry as the appeal to this Court is dismissed, and the full dowry should ho returned in the manner ordered by the first appellate Court. In hc peculiar circumstances of the casop each party is to beer own' costs :° this appeal, but the respondent will, have cost,s of the proceedings in the courts below.