19750307 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA

AT ARUSHA (Pc) CIV1L:MPEAL NO. 170 OF 1973 (FROM THE DECISION OF THE DISTRICT COURT OF ARUSRA AT ARtJSHA IN CIVIL APJEAL NO. 42 OF 1972) BEFORE:— J. M. B. MFUKO, Esq., District Magistrate. NANGANDARABOI ..."............,,,... APPELLANT versus LEMUSHERENI LEIBANGUTI ................ RESPONDENT

JUDGENT MAKAME, J. The appellant is just being obstinate. He was defeated in both lower courts on very satisfactory evidence and he is now merely ploughing the sands. The appellant married a woman called NAISOI LEKING'ORIE and had two children by her.. The they divorced and after the woman had gone back to her father's homestead and was living there she got married to the respondent who properly paid dowry. The woman and the respondent had three children together after which the woman left and resumed cohabitation with the appellant, her original husband. The gentlemen assessors who assisted the trial Primary Court Magistrate, both experts in Kiarusha customary law, advised that the children, two daughters and a son, were legally the children of the respondent, the seco.d husband, who was not only the legal husband during the period the children in dispute were bQrn but also he had provided her with OLUKIWOJETI, the traditional sheep, each time she was in confinement.. The trial court duly found in favour of the respondent and the first appellate court also agreed4 Before this court the appellant has said nothing that would maie me diagree with the two courts below. It may well be true that he betl"othed the woman when she was a very small child and it may also be true that he was even responsible for her circumcision, but neither of these matters has anything to do with the issue at stake. This appeal is accordingly dismissed with costs at shs.lO/=, inclusive of shs.4/= xeturn fare (L. M. MAKAME) JUDGE. Aru sha: 7th March, 1975. /MTPM.