19970704 TZHC Mbeya

. • • ,,. a IN THE HiGI-I COURI' OF TANZANIA AT KYELA ORIGIN_'.L JUHISDIC~L'IOi'l of I~yelc., at 11.ysJ..,: Di.str:~ct C01.,::.nt iri ; Civil A})J;,e,~l ;.;Oo 9~ o::: 199)) JAMES.MWALYUNGU •••••••••••••• Versus MWAITENDA MWAKASULA • ft • • • • • • • • RESPONDENT JUDGMENT -·--- tM_IP.OP0, J. : The respondent Mw2.itenda s/o Mwak.asula is now an old man of about 50 years who seems to have got married on 16/7/60 before the Independence of this country in 1961 and he alleges that he divorced his wife about two years after their marriage. He betrothed and married his wife one Sekel.a d/o Samata and paid a dO\vry of 5 head of cattle a.Qd ~ h ~hs.400/=• The sa.me wife of the appellant got leprosic before he divorced her and he took her to Masebe Lsprosy Hospital, Rungwe District \-Jhere s:1e lieves up to today as en old. wo1nan still under going leprosy treatment under quar2mtine. l'hey bore no chilclreli. respondent~ He cl1:.i,:i.s n:)t to be t:-,,2 j,)roper person to have been sued because he is D.:J'c the ad_ 1inistr2.tor of the estate of the late their brother Motoko. and thc/c the p:rnp:i r person to sue should have been the divorcee 's elder brother one Sementi s/o l 1wal~\'1.mgu. who is born b~/ the same mother 0 and f2.ther with the divorcee. The .s:.ppellant and his brother Motoka Mwalyungu are of different parents fror1 Sekela's parents with the same one common grandfathero But in cross-exaii,ination by the gentlemen assessors the appellant as D\-Je1 as W8ll as from the testi.rnony of DWo2 Mwantilya s/o Mwak.aloko it was sufficiently established th.s:c the appellant had some administratorr s role in the est2.te of Motoka s/o Mwalyungu who is the one who was the elder brother cum legal parent of Sekel.a cl/o Samata when she got married to the respondent and thc:.t it is the se.me, Hotoke. s/o Mwalyungu who received the dowry of 5 head of CD-ttle and Sh.s~4°50/= cashe So, the appellant could l&wfully be sued for the refund of this dowry even if he is merely a distant urother cu;n cousin of the divorced wife of the responde:::1.t the same Sekela d/o Samatao In the two lower courts the respondent \·ton fdr b0::.ng 1•efunded 3 head of cattle as dowry he paid for his divorceci wife Sekel& d/o Sa:natao The appellant has appealed to this court. He ha3 r1:.-tiseci. rne...ny grounds 2 . including one that the wife had no mistake for being divorced for she was taken by the res:i:iondent himdelf to Masebe Leprosy Hospital for treatment for over 30 yec1.r,s r:.01-.r after she cauc;ht that disease which medically demands her beinc; segre£;c::.tecJ. from other })eople to 2.void infection and that as such no dm✓ r~1 should. have teen refunded to him. He aJ.so testified that t'.1.e:y }.j3G. lived together for 10 years when he divorced her. The respondent on the eith·2:~ hanci ;Jroduced his ,11;::_:~riace cer·ti:f'icate the dowry of 5 11.:=::uC .:y· I have ob.serveci this Marriage Certificate cih:'.ch shows the.t their ca.rrj_age •;:as a customary one .si.ccording to ;.,)ya.kyusa customs soler,;niE.ed by the traditional tribunal of Busokelo on 16/7/600 'l'his marriage certificate shows that the dowry payable was 10 head of cattle and that he paid o::-:,ly :part dowry of 5 head of cattle and one bull. Since he did not cl2.i1a for the refund of the 1 bull it could have been paid not as pc.rt of the dowry but as a bridal present for being a virgin (Kinyago) in accordc:mce with Nyak;yusa nw.rriage customs. This orie is not refundable~ According to the respondents own testimony es PW .. 1 on oath he said that he stayed with Sekel& 0/0 Sama ta for only two years., Then; he left her for ever; neve:c to live t.oi:;ether with her· as husband and wifee He is so emphatic of L1is fact tl-i;c:t he 0:1:po:-:;ed th<:; testi11ony oI the appellant that they stc:.yed together for at least 10 ysars before they left each other. Even ti court her," h<:; r2i1 eated thc.t he stayed to 6 ethcr with Sekela for only 2 years. He hc:·,s to be beJ.i eved so a.'1.d the two lower courts believed him 0 0 0 0 0 ,, 0 0 0 C C O O O O O O O (J Q O 0 0 0 O I> O O CJ O O O O e C O O •• 0 0 0 0 0 0 0 0 00000000000000:loooc,:i•ooooooooooooo<>oo•ooooooooe Amri: Jvidaiwa arudishe mahari ng 1 ombe 4. Mcl.aiwa abaki na 1 ng ombe 1 na Shs.L;50/= kwani odai aliishi na mke miaka 2. 10/5/93·'. Summarized in English the qu,Jted ,Jo::.~ti:::m r 1 effi1S thcd: both the two gentlemen assessors - om:, li ceJ..vJE", tu1d. Dm7.)ld and the leurned trial magistrate Mr. Henj,::,1.-1ele (FCI',) ::•n,3.sed c.'. 1J_n·.·nii1'ous verdict that the .,_-;,,· - 3 - cash Shso45O/= were to be rete.ined by the defendant because hi§ \iaughter had stayed as a wife of· ':nE: plaintiff for 2 yearsi Since the respondent left his wife for evor in -1962 around mid~year (after 2 years fror.~ July, 1960) anc. this was a custom~r-y marriage' f:9r which the full dowry of 10 y head of cattLi waa not paid and they bore no child during their pr,)bati-:mal two years of :1marric:.tge' 1 the respond~nt by necessary inference r:mst be presumed to have divorced his wife by desertion within at le2.st the first 3 y<1.'J.rs up to 196.5. For all this period the a1:pellant testified thE(:; he wa.s in Mpand.a and he had no fare for returning to his wife and trnditional area in Rungwe District1 Even taking the 5 years when one under tha Evidence Act would be presumed to be d~ad if his whereabout is unknown then, by 1967 the respondent must be presumed to ho.ve been dead or divorced his wife. The respondent restified ~o have opened up divorc't proceedings in 1993 in Ndobo Primary Court Matrimonial Civil Case No. 48/93...,.,.,. (This one qf . dowry refund is Ndobo Pri:.;2,ry Court Civil C.?--Se i'Jo. 51/931) ~ He did not produce the proceeding or judz;er!lent of t:1e Ndobo Pri,Hr-.ry Court Matrimon:i..al .Civil Case Noo 48/93 as exhibit in this c2..Ge c.,s he did with the Ifarriage Certificate., Despite testifyLlg about the i"'l2.trimo,1ial Case Noo 48/93 he s·till maintained further down his testimon;y that he left his wife after living with her for only 2 yez.rs, It mexis tha-t tho matrimonial Civil Case No.48/93 was opened up by the respo,~dent as a :ploy to by pass the time bar doctrine for having not claimed back his dowry refund for 31 years from 1962 when he deserted his wife to 1993 when he surfaced to demanded back his dowry o It is repugnc.nt to justicE; to d.esert a i;wif(f' who has permanently fall en sick with leprosy in 1962 then come back in 1993 to demand refund of dowry after 31 years! The lower courts including the learned Mso Mbezi (SDM) on 1st appe2..l were woodwinked by the respondent's trickery· of mockingly opening up divorce proceec;ings in 1993 for a ;;marriage19 which had broken down u.nd has never bc'-n rene:-1eci for 31 y06Is. The respondent I s claim for dowry is time-barrede '.!.'he lower courts decision for aiw rerun.ct of dowry to the res,ondent ~re herecy ~uoshed. This appeal is allowed with costs both here E:I1d in the lower courts. E.L.K. M\:JI?OPO JUDGE 3/7/97 GI O O O O ./4 .. .4 - 4/7/97 J;lwipopo, J. Appellant: J::u.1e.s Mwal;yungu ~ Pr,:osent in perGon. Respondent: hwo.itendD. Mwc-lc,~u.la - Present in per3ou. C/C. Ms e Ngo go. Court: explai::1.ed. E.L.K. MWIPOPO- JUDGE 4/7/97 I CERrIFY THAT THIS IS A TRUE CD PY OF THE ORIGINAL.. _1_ij ··fi.H. Mandawa DISTRICT REGISTRAR MBEYA