19851203 TZCA Dar es Salaam2

I 1: IN THE cOmtT OF iiPPEAL OF T1rnz.AN Ill Ji T l\ll ~v~N Zll CIVlL J;PPE.l!L NO, 4 OF ~98 5 M.AHIZI JIYilLAG.ho • • 0 • ♦ 0 0 1,D Cl APP.t!:LLANT ' ----- AND DEUS !HJNGO. o ,, • • • • • HESPON.JZNT (Appoal from the Judgment of ,the High Court of Tanzania at Taborn) ~,1unyera, J.) dated the 26th Jay of March 1 !1983 in Civil Appeal Nu. 3 2f 1_28Q. .JJI.DG.l~ll'IENT OF TH~ 00.!lli,1 This appeal emanates from a judgeme~t uelivered in the Primary .I Court. Deus lifiungo ( the rJsponJ.ent .- herein) I;hc1d filed a case in the Primary Court at Bubiki claiming the rGturn of bridewealth i.e. 24 11 ,. head of cattle from Mahizi ( the appellant) who was the father of the wife Deus had divorcedo At the Primary :Court trial, Deus admitted he had divorced his wif'e because she refused to be converted to Roman Catholicism to which faith Deus :1ad been c,on:verted •. ,,__ That ,! was the only reason he gave for his action,, And a number of witn:::::ises also testified to the same effect.. It is also not disputed that there were three children born during the subsistence of the marriage. The Primary Court Wiagistrate, as well 'as the assessors, concluded that Deus was not entitled to the refund of any bridewealth because it was Deus himself who had divorced the wife because she refused. to be converted to Dau' s faith and because the mc1rr foge had lasted a long time and that there were 3

children born of the marriage. Deus appe:::led to the District Court which upheld the judgement of the Primary Gour t. 0 0 0 0 •••• /2 . I " ,: 2 ,, i, Deus then ;;:ppealed to the High Court:(M:unyera, J.) The High Court reversed both the judgments of the.:,, lower courts.- The judge 'I held that the divorce judgment should have been produced at the trial, I as the divorce judgment would indicate on what ground the divorce was granted and from the ground it would 1:Je discovered, who, if any, J ' was the guilty pe1rtya The j ud.ge came to ~ha conclusion tLt.& .tL,., party responsible for the proc;.uction of the divorce judgment waL ,.1izi ( the present ap~ellan t) o Since Mah izi ha~ failed to pro<iUcb the document, and since there was no such doc~ment proJ.uced at-the trial 1 there was no ba:::;is for the or<iar of the /efusal to refund bridewealth I in this case.- The judge ordered Iviahizi to 1; refund 18 head of cattle 7 deducting lih animals because of the thre,e children. We oomplet3ly fail to understand th,e judge's finding. It was abundantly clear from the evidence at tlie trial, that Deus had divorced his wife because she refused to_ be converted to Roman Ca thalicisma We also fail to understand 'why the judge held that it was the responsibility of Mahizi to prodqce the divorce judgment., Indeed the divorce judgement in this case is irrelevant. judgement of the H1gh Court and restore that i Court• W&allow the appeal of rllahizi with costs • .Ao MUSTAB,.A 'I

JUSTICE OF APPEAL

JUSTICE OF APPEAL ,, R. H. KISJJNGA

JUSTICE OF APPEAL 3 :i original••· is a true c:)py of ',I - '-- / ~. ( S• J,.. L.A WEN,.A -- DEPUTY tlEGISTR.BR• ) ' i :1 :1 '\,I I !i •I ;1 !1 11 1! lj ~ :i :I ii ;1' <I !I :1 I'I 'I :I .11 :1 i1, Ii ,1 :1 '.! -~-......~ \ f r·' ' _, 7"'" I.,, I