19880106 TZHC Tabora

IN THE HIGH mum OF T 4NZ4NI .~ _1T T ABO B.i:, H/C CIVIL 1PPE4L N0.17 OF 1987 D/C CIVIL APPE~L NO.l OF 1986. lV10H4J.l:IED M\SUNG ,'l ••••••• , ••••• ~ i •• ••• APPELL.1NT Versus ALOIS Mt3.1~NJ A •••••••••••••• ~~ •••••• RESPONDEN"T JUDGMENT CHIPEI' .'l, J. In Igung 8 Primary dourt at Igunga, the respondent, Aloys Masanj a, sued the aPP ell ant; Mohamed Masunga for the recovery of Shs. 2,000/=. The trial co·urt found for the respondent, and the aIJpellant unsuccessfully aIJpealed to Tabora Resident Magistrate's Court. This9 then 9 is the aPPellant 's second appeal. It is not in dispute that sometime in 1984, the respondent fell in love with the aIJpellant's da-ughter and the two decided to contract a marriage between them. The aIJpellant, however, told the respondent that the latter could only marry the formervs daug.l;lter if the latter, who j_s a Christian, becaine a Moslem. So the respondent converted to the Islamic faith, Ther.eafter he paid to the aPPellant Shs~ 200_0/= as :Part bf the brideprice dlor Ji!larrying the aP,PelLant 's daught erc1 It was the aPPellant 's case that the two agreed that should the marriage not take piace, that amount would not be refl¾ndab1.li.e. APParently not at peace with his new religion; the respondent change·d his mind and t-evert ed to his old religion • . . . ... /2. / ' .... Thereafter, the respondent suggested to the aPP ell ant that the respondent and the aPP ellant 's daughter should contract a cj_vj_l m8 rrj_ 8 ge, a suggestj_ort whj_ch the appellant refused to accept. That brought the parties to an impasse and so the agr:ee."lent to marry fell through. It was then that the respondent sued for refvnd of the br:Ldeprj_ce. In dismissing the aPPeal, the first 8 ppellate court held that the aPPlj.cable law was the law of contract and went on to ·hold that the contract between the parties that the brideprice would not be refundable was void under the provisions of section 28 of the Law of Contract Ordinance, 1961, and that the contract under which the money was paid was voidable and so the 9.Ppellant had to restore the sum to the respondent. With respect, I think that j_t is correct to say that the aPPlicable law chs the law of contract, for agreements relating to marriage are themselves in the nature of a civil contract. (See Bashfo7i'd v. Tuli, (1971 H.C.D. 76). To the extent, if true, thgt the Parties a g ~ that the b.rideprlce .Paid would not be refundable if a marriage w::is not contract ed 9 the contract was voj.d by the ·provisions of section 28 of the Law of Contract 01·dinance. On that basis, the respondent W8S clearly entitled to recover. B'l:a:sides, taking the bridepri ce as intended to be in consideration for the respondent's marriage to the aPPellant 's daughter, clearly the respondent rec,U;ved. no consideration. For these reasons, I respectfully agree with both courts bE!lo-w. This a,ppeal is accordingly di:smissed with costs. ;/4 I . I I • 1:',//(c I 1/./(f? I .· ·----- TABORA, ! ..,. B. D. CHIPEI' I\, 6/1/1988. JUDGE. ,.. I. •• \, \ \ . -4-' ~.. \, ,.