19770510 TZHC Mwanza

% 9 V7/ IN THE HIGH COURT OF TANZANIA AT MAN ZA (PC) CIVIL APPEAL NO0 13 OF 1975 (Fro 4-1qe dccision of the ciistrict court of MUSOMA district at MUSONj in civil apeal No0 70 or 1973 Beore I. iJYAMtiiK1TO Esq., DIST4 'IcjT JAGISTRiTE (OrigiiZaaki Primary Court Civil Case No. 19 of 1972) MhSE N'9iMS,iNGIL1 ...... ..iPPELr1NT verus W AIIBURA NYANSnJ'JGILyA000000.O 0000.O,.oOoo. 0000 .o. 0 ...RESPQNDENT -OoO- DGN MFALILA, J. The par'ès in' this 'e'ai ar "bOherand is±er and this :acifl. is deepl/ r`6ot' e-d io the peculiar cuS'€oms - af, their tribe. This factor has to be concc'ntiy kept in mind particiularly by a'y outsider adjudi.ct- ing on such a cfisute. It apoears thit the Waanaki in their social set I up allow women ' to sort of "marry't another woman. although this kind of arrangement has all the paraphernalia- of a marriage in that bride price is paid by tha marrying woman and th bride physcally i moves to the new home it rannGt he regarded as a marriage in the conventional sense nd certainly the law r marriage Act would not recognise such an arr'angemE. it as a thrriage c-e sii-nple and -bbv1u recorkhat the mrrying!', wprnan is physically icpable of consummating the marri - ge. But for my. part I think tht su c h a 'social arrangement has a:lo.t of common sense It provides the "marrying" woman who is usually barren old woman. ;wh . security, which she could not otherwise get, and this through the child- ren born to -her "wife", or as they are locally kr'own "mkamwana." It is a good customary social arrangement which can be enforced not aq a marrLage but as asp ~ ecies of &istomary contract0 Now back to the present case. The appellant Mase s/o Nyamusangilyn and his" respondent s i s t:Wambur a d/o NythusaPgilya.had':another.oher Wamwéli s/o Nyamusanilya, who is tiOw deed arid hC apears:to'have ben- te eldest. Sometime around 1957 the appellant maricd a woman named Gti who is described as a Nkuria. At the time of this marriage th'.,womaTh Gati was pregnant from her previous mar±'iage to a man named Mwita s/o t ianzugu, o months after the marriege, Gati gave birth to a baby girl. When this baby weaned, her father Mwta came to claim and take her. The appellant did not like this arrangement for he feared that if Mwita took his cil, that would involve his wife Gati travellin fairly often to Mwita's. home to see the child. He therfdre conferred with his brother Wämwei-out this problem and suggested that he should pay Mwita 10 cows so that he might retain the child0 'Wamweli agreed but he came out with a suggestion of his ' own. He suggested that sirce their 'sister the present respondent was bairen (he had 'in fact refundCd 'the' bride price to her former husband on this account), ho should give the required cows to the appellant who' wOuld deliver them t the child's father and that'the child should come to live with him, later to become their'ister's "mkmwana" or wif e tt when she grew up 0 This was agreed and L'Jamweli paid the 10 cows to 'his brother the appellant. The anpCllent handed the cows to Mwita and from this point on, the child actually was taken and lived at Wamweli 1 s homestead where incidentally the respondent also liVed after her divorce. Unfortunately' the ciId fell sick and the appellant offered to take her to a local medicinman he knew for treatment. He was allowed to take the child. Tnefl tho chila got better, the appellant failed to return it to Wamweli and he ' n'eier did so until'Wainweli died and to this day despite persistent protests byWamweli bofaro he died and the respondent. At long last the respondent sought redress fr3m the Ccurts. This was the respondent's version at the - 2 - trial where she was the plaintiff and shp, called a number of witnesses who supported her 0 •'' The appellant denied these lleations, ' Ho red' with most of the background starv'ãsnarrated by the "rspondent and.4 -ir witnesses but he said that the..1Q cows r .which he paid to Mwita were his own0 He labelled as lies the respendents allegdtidns tht'thes: /ere 5rovidad by Wamweli for her benefit. He also called one witness who supported him in this saying that the ten cows were driven frb -ñ the ppellnt's ctttle' pen The Pri- mary Court unahiniôusly":found for th espopdent©. They accepted her vidence and that of her witnesses as true and rejected the appellant's. They held that there was no reason for., the. resuondont who is appellant's, bro- ther to lie against him in particular when her age is taken into account. The Primary C.urt therefore ordered th . if the appellant was unwilling to give up the child then he should refund the 10 cows to his sister which were in fact paid on. her account and for her Jpr, npfit by, their dead bro-. ther. He unsuccessfully appealed to the district Court. In this appeal the appellant repeated his denials of receiving any cows from his deed brother, he says that the cows he paid to Mwita were his own and that in any case the responddnt did not inherit Wanweli's estate so as to entitle her to claim the cows. . I think both these c'lims are without substance. As to the owner ship of the cows oaicl by ±he appellant to Iwita, the Courts which saw the witnesses believed the rLspondent and her witnesses and held that the cows belonged to Waiwelj. , who paid them for tho benefit of his sister, the respondent Goieg through the record I also get the some impressioc that the respondeat and hr witnesses told the truth. s to the respondLnts right to c ta)iml the coos, it..shbuld be statLd that the respondent claimed these cows in her: own right'.. .:'Th- se tows had es it were .baen. given to .heç,.. s they were paid to the aaellant for her aenefit in order to get a "mkamwanp . ' She has every richt to enforce her right over the girl failing which the cows. If the respondent had: no cause of. actipo,- the assessors who, .s.at in the Rtimary Court 'and who are no doubt -well versed in the Zanaki Cp.tpai' law, would hve csallowed her claim. 'The 'qustion of limitation was not raised at the trial hence thii Court clánnot consider it..' It would be totally unjust to depriVe t1e res- pondent of her rights on a technicality whiph rin amount of exp.lanaion would make her comerehend. For theSe 'reasons. ..I am satisfied that the decision of the Courts below werecorrectand.do not call for any interference. The, appeal is accordinglydiismi's.sed. Asneither..party appeared there will be no orc4pr for cost , ,--- MJJ.N.ZA,: :. , , , . L. MFALILi 10TH MktY, 19770 - , . . . .\' ............