marietha misalaba vs charles petro 2020 tzhc 4698 14 december 2020

IN THE HIGH COURT OF TANZANIA ® MWANZA DISTRICT REGISTRY

ATMWANZA PC. MATRIMONIAL APPEAL No. 19 OF 2020 (Arising from DC Civil Appeal (Matrimonial) No. 06 of 2020 of Magu District Court, originating from Civil Case No. 41/2019 (Matrimonial) of Kabi/a Primary Court of Magu District)

MARIETHA MISALABA APPELLANT

VERSUS

CHARLES PETRO RESPONDENT

JUDGMENT 22° Sept & 14° December, 2020 TIGANGA, J Charles Petro, the respondent, sued the appellant Marietha Misalaba for the return of dowry after Joyce Paul, the daughter of the appellant, for whom the dowry was paid had divorced the son of the respondent one Kihulya Charles. Initially the son of the respondent contracted a customary marriage with Joyce Paul, the daughter of the appellant. The respondent was required to pay and paid five cows and one goat as a bride price in respect of that marriage. However, after few days of such marriage, the daughter of the appellant allegedly enticed by her mother, who is the appellant, filed Matrimonial Case No. 52/2019 asking for divorce, so that 1 · · the daughter can be married to another man, who would definitely pay the 9 bride price which would be received by the appellant. The complainant before the trial Primary Court boasted to have evidence to prove that the appellant has been using her such daughter as an investment whereby she receives dowry and after she had married, the appellant entices her to ask for divorce so that she can marry another man who would pay a fresh dowry. From the record, the appellant admitted to receive dowry from the respondent, however, she said that was a gift, and a gift once given cannot be returned. Further to that, she argued that, even if the court makes an order for return of dowry, one cow must

be retained which in Sukuma custom is called "Ng'ombe wa Maji". Having heard the parties, the trial court decreed for the respondent. It ordered that since it was proved by evidence that the appellant has been using her daughter as an investment, then the dowry be returned in full. Therefore, the court ordered five cows and one goat to be returned by the appellant to the respondent. Aggrieved by the decision of trial Primary Court, the appellant e appealed to the District Court of Magu by filing four grounds of appeal which were replied to by the respondent. At the hearing of the appeal, both parties adopted their grounds of appeal and reply thereto, and asked the court to base its judgment on those grounds and reply thereto to decide the appeal. Having considered all the materials before it, the appellate District Court, dismissed the appeal with costs on the ground that the appellant agreed to pay back the dowry she received. Further dissatisfied by the decision of the District Court, the appellant filed two grounds of appeal as follows; 1. That the lower court below erred in law to entertain the respondent's claim of refund of dowry price without any locus standi and also contrary to the customary law position that the one who pays dowry is the husband and he is the one who can claim and be refunded of the same upon dissolution of marriage and not to the contrary.

2. That the court below, erred in law and in fact to rely on the hearsay evidence by the respondent in holding that, it was the appellant who was responsible for breakdown and dissolution of their children's marriage which is contrary to its previous findings in Matrimonial Case 52/2019 at Kabila Primary Court that the respondent's son was · st: in fact the one who was responsible for breakdown of marriage on e account of desertion and cruel conducts against his wife. The copy of the petition of appeal was served to the respondent as proved by the affidavit sworn by Neemia Samwel Nyadhi, the court process server, but he did not appear, therefore the appeal was heard exparte against the respondent. At the hearing, the appellant, admitted to have received five cows as a dowry but informed the court that she has consumed them all. She also submitted that the son of the respondent be got a child with her daughter, but the respondent refused the child. She complained that the respondent has no locus standi, as it was the son of the respondent who was supposed to claim the bride price and because the son of the respondent who is her son in law, has never refused the child, and that it is the respondent who denounced the child, then the son in law cannot be taken to have refused the child. She submitted that the son in law is a person proper to claim the cow not the respondent. That

being the summary of the records, the grounds of appeal and the submission by the appellant, from all of them, there are two issues that can be framed from the two grounds of appeal as follows; ·sz» i) Whether the respondent had locus standi to claim for the refund of e dowry after the marriage between his son and the daughter of the appellant was dissolved? ii) Whether it was proper for the appellant to be ordered to return dowry in the circumstances where the person responsible for breakdown of marriage was the son of the respondent? First and foremost, it is important to point out here that these grounds were not raised as the defence before the trial Primary Court and were not substantially raised before the appellate District Court. They have been abruptly raised here in the High Court. Before the Primary Court, the defence by the appellant was that, she had already consumed the cows, but if need be, then one cow should not be returned because, it is "ng'ombe ya maji" in Sukuma customs. The appellant said nothing about the pregnancy of her daughter, and about the locus standi of the respondent to sue. Further to that, she said nothing about who was responsible for the breakdown of the marriage. Instead, before the District Court, in her own grounds of appeal she complained of the trial Primary Court's failure to consider the evidence of her side. • In the second ground she

said; e ''as long as the appellant admitted to have been received dowry from the respondent, then she did not receive for keeping other than to use therefore will refund the same by installment" Looking at her own grounds of appeal before the District Court, it goes without saying that the appellant received the dowry from the respondent as she acknowledges above, she cannot be heard now lamenting that it was the respondent's son who was supposed to sue. This resolves the first issue in the affirmative that the respondent had the locus to sue because he was the one who paid dowry, and appellant acknowledges to have received the same from him. In the second ground from which the second issue was framed, she dispute for an order of refunding even the "Ng'ombe ya maji" she acknowledged that the cows which were supposed to be returned are four cows excluding the "Ng'ombe ya maji". In the fourth ground of appeal before the District Court, she said she was ready to pay two cows, as one was "ng'ombe ya maji" two were 6 @ e · • compensation because her daughter was pregnant when their marriage came to an end. From the foregoing, it goes without saying that the appellant admitted the liability before the appellate District Court that is reflected in the grounds of appeal and the arguments advanced by her in the prosecution of the appeal. What he posed in the arguments was the mitigation

of the liability. It is a cerebrated principle of law that the appellate court can entertain matters of facts which were pleaded, argued, proved or disproved by evidence at trial; new issues which were not raised, argued and decided at the trial cannot be entertained on appeal. These new framed issues were not raised at trial, but most of them were entirely admitted by the appellant's own pen and mouth before the District Court as indicated above. What remained contested was only one cow, "Ng'ombe ya maji" which customarily should not be returned. The trial Magistrate and his assessors ordered all the cows to be returned because of the appellant's behavior especially of using her daughter as an allurement to men to pay her bride price. .15a ® Those facts upon which they based to so decide were not substantiated by evidence; they were just allegations from the respondent which were not proved by evidence. That being the case, I find the trial Primary Court to have held without justification that "Ng'ombe ya maji" should also be returned contrary to the known customary law of Wasukuma which both parties acknowledge and subscribe. That said, I find the appeal to have failed in part, the appellant be condemned to pay only four cows to the respondent. The said "Ng'ombe ya maji" should not be returned. The appeal is partly allowed and failed to the extent explained above. It is so ordered. DATED at MWANZA, this 14 day of December, 2020 J. C. Tiganga Judge 14/12/2020 8