njegene ngalu vs elias salagani 2005 tzhc 169 30 june 2005

IN THE HIGH COURT OF TANZANIA AT MWANZA PC. CIVIL APPEAL No. 138 OF 2001 {Arising from the D/Court of Sengerema Civii Appeal No. 28/2001, from original Civil Case No. 30/2000 Nyaucheuche P/Court) NJEGENE NGALU.................................................................APPELLANT Versus ELIAS SALAGANI............................................................. RESPONDENT 26/5/2005 & 30/6/2005 JUDGEMENT R. M. RWEYEMAMU, Judge: Njegene Ngalu the appellant, successfully sued Elias s/o Salagani in Nyanchenche PC Civil Case No. 30/2000. Elias successfully appealed that decision in Sengerema DC. Civ. Appeal 28/2001, hence this appeal by Njegene. Throughout, Njegene was represented by his son, an issue which became a subject of contention by Elias on appeal in the DC, as explained herein below. Facts giving rise to the contention between the parties are simple, yet interesting in their reflection of an interplay between traditional custom and practices; present day socio - economic realities and the resultant confusion. Elias's daughter vanished from home in circumstances indicating that she had gone off to marry. Her age is not indicated and is of no present relevancy. Elias's search led him to believe her daughter had married/eloped with Njegene's grandson. He went to l the latter's compound and there took 18 herds of cattle as bride price. There was contention in the evidence regarding whether the amount was negotiated between the family of Elias and the said 'grandson.' The PC found that Njegene never negotiated or agreed to pay bride price to Elias at all or in the form of cattle. There was also an issue in the PC of sukuma customs relating to procedure, quantum of fine and subsequent bride price when a daughter elopes. Apparently, after Elias forcibly took the herds of cattle, there was subsequent meetings also involving a police DW - who had been called in by Elias to help him look for his daughter. The PC decision was that Elias's action of forcibly taking cattle from Njegene was wrong for two reasons. First, because the procedure prescribed by sukuma custom when someone's daughter is 'abducted' into marriage was not followed by Elias. The procedure was explained in the court, it did not involve taking 18 herds of cattle. The Second reason was that Njegene was not the person who allegedly eloped with Elias's daughter nor his father, but his grandfather. Under sukuma customary law, he was not the one liable to pay bride price. It is may be also interesting to point out that no evidence was led to establish whether Elias's daughter was indeed abducted/eloped/married to Njegene's grandson. But be that as it may, the PC decision was that Elias's action was wrong. They found for Njegene and ordered Elias to refund the 18 herds of cattle to Njegene. 2 On appeal to the District Court, Elias had two major complaints. One, that the person who appeared on appeal one Erasto Njegene had no power of attorney. Two, that infact the person who eloped with her daughter was the son of that person - Erasto Njegene. He added that according to the customary law, payment of bride price should be made by the husband but his relatives can help him. Two issues, key in my opinion were not contested. First, there was no contention that the 18 herds of cattle taken by Elias belonged to Njegene, the appellant, not his son, or "culpable grandson". Two, the customary law relied on does not permit taking the cattle forcibly, it envisages negotiation and conciliation. Strangely, the DC on appeal as partly rightly put by the appellant, did "not in his judgment consider issues in the case". He found first that the case in the DC was not proved against the respondent/defendant because the appellant/plaintiff did not personally testify in court. The appellant was represented with court permission (for reason of deafness) by his son (as per Pc court proceedings page 2). The appellant is right and the District Magistrate wrong, in that the law - the Magistrate's Court Act, recognizes and permits such representation. I find the other holding of the DC magistrate not only wrong on the issues before him, but also strange. 3 One revolves around the finding that cattle forcibly taken by Elias belong to the culpable grandson of Njegene, a matter not born out by facts/evidence on record. Two, the DC Magistrate goes on to state that, and I quote; "There is no divorce case file was filed moans the boy and the girl are still together cohabiting as husband and wife why the dowry be refunded while the spouses are still together. Here Erasto Njegene a boy's father should be educated so". Summizing the meaning of the above paragraph, I believe the Magistrate is saying Elias cannot refund bride price because his daughter's marriage is still intact. I find this conclusion strange because on the facts available, the marriage or abduction was not proved or in issue in the PC or on appeal in the DC, nor was the fact of whether the resultant relationship, if any, (between Elias's daughter and Njegene's grandson) still exists. At issue on appeal. was whether the PC was wrong in finding that Elias's action of forcibly taking Niegene's 18 herds of cattle or put differently forcibly taking bride price was on the facts and governing law, improper. It is important to add that on the facts, even if Njegene was claiming return of bride price (properly given) due to breakdown of the marriage, that claim would not be maintainable in law. This fact derives from the provisions of the law, s. 7 of the Law of Marriage Act 1971. Considering the issue of refund of bride price, the Hon. C. J. Samatta J, as he then was; held in Mohamed Ndwata v Hamis Omari (1988) TLR 137 that: 4 "Once a marriage has taken place any gifts, whether traditional or otherwise, given in contemplation o f the marriage become the absolute property o f the recipient and it cannot be diverted by subsequent divorce: s. 7 o f the Law o f Marriage Act o f 1971 which also supersedes rules o f customary or Islamic law. " I wish to comment in passing that it is cases like the present, which leave one wondering whether the existing customary laws & practices or as interpreted by its guardians - the court assessors; in all situations real meets the current aspirations of all the governed public. We see parents of both sides in this case, dragging each other to court; while their children, may be both adults, and as per record living in another region, carrying on, and probably oblivious of the consequences of customary laws "governing them" in their birth place. That observation aside, on the explanations given above, I concur with the PC finding that Elias was wrong. I accordingly accept the appellant's appeal, restore the PC decision and order of Elias refunding Njegene's 18 herds of cattle and costs of the suit in that court. I Further grant the appellant, Njegene subsequent costs on appeal in both courts. It so ordered. R. M. RWEY JUDGL 22/6/2005 5 Date: 30/6/2005 Coram: Hon. R. M. Rweyemamu, J. Appellant: Present in (person who Republic appellant) Respondent: Present in person B/C: Lwiza Court: Judgment delivered this 30/6/2005 before the parties. Right of Appeal Explained. Date: 30/6/2005 Coram: R. M. Rweyemamu, Judge Appellant: Present in (person who Republic appellant) Respondent: Present in person B/Clerk: J. Lwiza Court: Judgment delivered this 30/6/2005 before the parties. Right of Appeal Explained. R. M. RWEYEMAMU JUDGE 30/6/2005