19801105 TZHC Musoma

- S - IN ThE HIG, COURT OP TANZANIA L1i AT MtJSOIL. APPEILTE JJRISDICTION c.ivii APPEAL NO. 152 OP 1979 (Prom the decision of the District Court of Serengeti at Magumu in Civil Appeal 1'o 18 of 1979 - Before: R. I. Lkume Esq., District magistrate and Original 1enyana Primary Court Civil Case No 43,11978) MONYl 2&WITA : $ : : : : : : : : : ; : : : : : : : : : : : : : :.: : : : : : : : : :.: : : : : $ s APPEILP.NT VERSUS RESPONDENT 0000 J U D G E MB NT MF.LIIi, Jet. This is a second, appeal by the appellant MONYI MWITA. His first appeal to the District Court at Mugumu was dismissed. In the Primary Court of Serengeti District at Kenyana the appellant sued the respondent MTURI 1iJBO claiming compensation for adultery, he claimed 8 heads of cattle in support of his claim he told the trial Court that sometime in 1967 he was married to the woman Nyabasamba That in 1974 she disappeared from home He went in seark for her and in the same year he found her living at the home ofhe o respondentts brotherpne JIasidj. He took her before the local Conciliation Board who after , a lengthy bearing orcthred his wife to go back with him, This he did, but on the fo.Uwing day, the woman left him again and returned to the respondent where she has been living ever since. The respondent denied that he was committing any adulte1yThy lig with the woman Nyabasamba. He said that the woman is his wife whom be j.nherited from his dead brother The woman herselfgave evidence in which she denied all knowledge of the appeliant She denied that she was ever his wife. She said that while she was sti11 a girl, she married one Mangura the respondent's elder brother and lived with him for seven years when he died Upon his death she returned to her parents but after one year returned to her late husband's home whore she lived at Masudi's home while awaiting for be' rospon.dent who was still at School. apparently she was waiting' for him because he was to inherit hor, Since then she has been living with the respondent as his wife She was therefore totally surprised to hear the appellant suing her husband for adultry There was a lot .of confusion in the evidence regarding the status of Nyabasamba. One side branded her the . appollant's , wife t and the other as the respondsnt's inherited wife. Each side told obvious 3.ja to suit its.position. For instance Nyabasainba was obviously lying when she .d.enied all knowledge of the appellant, for it is quite clear that after her husband's death, her mother accepted bride prge from the appellant thereby becoming his wife This must have happened during the period when she returned home and lived ther for one year before decidinr to return to her late husbandts home Her mother was also lying when she denied all knowledge of the respondent, for she must nave knOwn the respondent was - e younger .. - 2 - brother of her daughter's first husband Her denials must have been motivated by fear of refunding bride price under the Ngxrenii customary 1aw The Primary Court found and held that the appellant could not recover damages for adultery because his marriage to Nyabasanba waa irregular under their tribal customary law which requires that a widow must remain at her late husband's home to be inherited and that if anyone outside the clan marrieè such a widow s he mustrefund the bride price paid by the dead husband They held that as the appellant had not refUnded the bride price paid by the lätè Margura, he could not beôame Nyabasamba's husband who had toreniain and be inherited byone of the methbersof the clan The Pr±m.rr Court Magistrate went as. far as to say that although the customary laW (Declaration) Order ñules provided the cOntrary, the customary law Of the tribe took precedence Over this rnatter. In this he wh wi'ong Unobdifled customary law must give way to codifId Rules Hence in this particular case the operatie rule Is that death of eIther party determines a marriage and no bride price is refundable On appeal to the District Court, that Court dismissed the appeal holding that under Rule 64 of the Customary Law (Declaration) Order 1963, Nyabasamba had validly exercised her right to be inherited by one Of the relatives of her late husband and that therefore the appellant could not marry her; It followed then that he could not mintaim an action for damages against the respondent who was her hueband This is a further appeal. The validity of the customary marriage between the appellant and the woman Nyabasamba did not depend as the Primary Court held, on his refunding the bride price to the late Mangura 's family The marriage betwéenMangura and Nyabasamba ended at Mangura's death s and no bride prióe is refundable, The written laws on the point have superseded whatever Ngurenie custoniary rule to the contrary Under the law of Marriage Act 1971 "Martage" is defined under section 9 (i) as "the oluntary union oLa man and a woman intended to last for their joint livaa" Ir and under section 12 "death of either pary determines a xnarrige. As to the refund of bride price, this is forbidden by Rule 62 of the Customary Law (Declaration) Order 1963 Nyabasamba's inheritance by a member of her late husband's clan depended solely on herfree ohoice under that Rule at the time of her husband's death and since after her husband's death she returned to her parents, this indicated that she did not opt to be inherited or at least she was not decided. Therefore when she reached her parents home, she became free to marry whomsoever she chose and this is what happened when her mother accepted 38 heads of cattle from the appellant as her bride price. She only decided to leave the appellant and return to her late husband's family when she realised that she did not like or more correctly love the appellant and sought then to exercise her right to be inherited by one of her late husbands brothers But I think this was rather late In the day as she was then already marriea to the appellant. Her mother had already aecepted bride price for her. In these circunstanees other things being equal, the appellant was entitled to sue for damages in adu1tery However I do not think everything was equai. The appellant said that his wife deserted in 1974 and went to live with the resporident. I do not understand why he remained silent for four years before deciding to file iero11m He should have sought relief imediately the woman left him rather than walt for 4 years leaving the respondent to believe that the woman was then his lawful wife under their custoniáry law which unknown to him has been superseded bycodified provisions. I do not think in these circumstances it would be just to award damages to the appeflant I think he wOuld have fared better if he had claimed • Maiae Act 1971 iii utider sèótion 13 of the Iw of damages for ènticerit For t1iee redns this dpppal fails and it is dismi.5ed with costs. i MPALIIA MU$OM1 .-jf JUDGE 11 H a •1 ,.