19760223 TZHC Mwanza

ti '1'1 1•t(?4 iiUPP oF NZiNI\ . I he. Pi st ict Reoist..) AT MWANZA (PC) CIVIL AE4L NO. 256 OF 1975 • (From the decision of the .district.court of .MA$WA at MASWA in Civil, AppealNo.12:f .1975.. Original Civil Case No. 26 of 1975 of the Primary Court at NYALIKUNGU NJIGE FALE. 00000000 00.00 00 0 00 000000 000000000 00600 000000 00000 0ALPELLANT versus NGOLO IttT\GWA..0. 0000000000'.00joor.o.0000..o...oe0o00000000000RESPONDENT -.OoO-- C tJDGMENT MFALILA,_J.: The parties were husband and w.fe for 20 years. Sometime in 1975 and for reasons which appear to be extrem-ly trivial when viewed against the age of the parties, the appellant Njige Fale, the husband, ecided to pack t.p and left the matrimonial home with the entire family property consisting of cattle; 27 in all. It appears that to-date this S marriage has not been dissoi:ecl. However, when it appeared to the respondent wife Ngolo d/o Magwa that to all intents and purposes the appellant had decided to leave the matrimonial home permanently whenhe left and drove away all the cattle to a new home where he established himself, she lodged this claim based in customary law claiming a por- tion of this family wealth. She claimed in all 10 heads of cattle as her share. The Pritrary Court found that the parties' parting was irrevocable. They therefore ordered that the respondent wife be given her share of the family wealth. They found that as in customary law she is entitled to a of the family wealth on parting from her husband, they ordered that the husband should give her 6 heads of cattle. The appellant appealed to the district court against this decision arguing that as he paid 6 heads of cattle for the respondent in bride price, she is entitled to only ½ of these, that is to say 3. The district Magistrate rejected this argument and dismissed the appeal, holding that the Primary Court's decision was supported by the customary rules. From his decision the appellant further appealed to this Court. After examining the record I think that the appellant's arguments have no merit0 The respondent, was not claiming refund of bride price to which she is not entitled and in any case the marriage has not been dissolved. What she was claiming was her entitlement in customary law to the family produce on separation. Th3 family produce in this case con- sists of cattle. The rules say she is entitled to a % and I cannot see the basis of the appellant's argument when he has himself deliberately broken up the matrimonial home and left his respondent wife destitute. I saw both parties during th' hearing of this apptal and heard them and I was satisfied that the respondent wife is a very responsible old woman who is being victimized by her old husband who appeared to be a very sinister and selfish old man. His only reason for moving sway from the matrimonial home was to get for himself the entire family wealth under the pretence that the respondent had driven him away, which is absurd because by his own admission the home is his own so that the respondent wife was in, no position to drive him away. He cannot come to Court and ask to he assisted in fulfilling his selfish intentions0 There is one thing before I end. It was agreed all round that the appellant drove away a total of 27 heads of cattle. If the rules say that the respondent is entitled to a 1 of the family wealth, then this - 4 should be calculated to the nearest quarter in favour of the respondent. o e /2 C- -2— On this basis the quarter of 27 to the nearest figure is 7. The res- pondent is therefore entitled to 7 tieaclls of cattle and it is ordered that the appellant should hand over to her 7 heads of cattle. If and when the marriage is dissolved under notional law, the respondent wife will he entitled to a bigger share when dividing the assets. Apart from this variation the appeal is otherwise dismissed. The respondent will have the costs of this appeal LA SHINYANGA, L. MFALILA 23.2.1976. JUDGE..._. I S