19801106 TZHC Musoma

a IN THZ 1iGR COURT OP TNZANLA AT MtJSOLiP APPELLATE JURISDICTION. (pa) CIVIL APPLa NO. 159 OF 1979 (From the decision of the District Oou't of Jri.e Distr'iot at Tarime in Civil Appeal No. 15 of 1976 - Before S Luzaro, Es " Dtrt i Magistrate and Origiia1 Mtana Primary C urt Civil Case NO. 89' 1979 MVIITA 114YAYA ::::::::::::::::::::::::;:::::::::: APPELI1NT VERSUS RESPONDENT JUDGEMENT MFAIiIL, J,: The respondent sued his father-in-law t1i appellant MWITA MYAYA claiming refund of the balance of bridO price amounting to 7 heads of cattle. He: told the Primary Court at Mtuna that when he married the appellant's daughtoz4ePid•: 2 7 heads of cattle, and that out of, these the appellant refunded 20 he2ds in an earjaer sulG which was later nullified by the High Court On the ground thatthe marriage had not been dissolved. He was advised to got the necessary divorce e but the 20 heads of cattle which had already been refunded remained with him pending divorce proceedings. This he did and on 23/7/79 he obtained the divorce. Thereupon he instituted these proceedings to recover the balance of the bride price. ite appellant resisted this claim saying that there was ndt1ing outtanding for him to refund to the respondent. He said that the agreed bride price between him and the respondent was 33 heads of cattle, but that out of this the respondent paid only 20 heads of cattle leaving a balance of 13 heads of cattle which he promleed to pay . 1ater This the respondent did not do until the iilution of his marriage. to his daughter Therefore as he had already paid 20 heads of cattle to the i'espondent, there was no balance to be refunded. The Primary, • Court found on the evidence that the respondent had paid and the appellant had received 27 heads of cattle, therefore th? two assessors ordered the appellant to refund the balance of 7 heads of catt1e' But • the Magistrate on his own ordered the refund of only 4 heads of catt1e. In this he was in error s for he could not override the majority decision of the Court. In the appeal and cross-appca1 to the District Court, the District Magistrate restored the majority decision of the Primary Court and ordered the appellant to 'refund the balance of 7. heads of cattle Unfortuntely both in the Primary Court and the District Court on • first apeàl the question as to who was th :uiity party in the divorce prooeedngs *as not coñsidered Perhaps this was due to the fact that the whole of the appellant's argument turned on the number of cattle he had received and that ao hc5. Lefunucd the whole lot. I thiik that in cases. involving refund of bride price the trial court must - determine the quëátibn of guilt and responsibility for the break up ofthemarriage.even if it is not rais:d by the parties. This would nakeizb easier to deter tine e o t r2i r' lc after deteruj.ning the amourt. .'h±ch o:l: :tT . :1 :: •: :'oceoded on t1asis