19761102 TZHC Musoma

IN THE HIGH COURT O' TLNZANIL. LT MUSO. .: (Pa) CIVIPPL NO. .309 OP 175 • . (Prom the deiion of the distric court of TJINE at TLRINE in Civi' L.ppeal ilo. 81 of 1975) Bf ore N. H. :BIDBERI, Esq., ISRICT NLGISTRLTE Original Nyamwa PrimaryCourt Civil Case No. 79 if 1975 NNII(O . WLDIBURY.. •. • •. . . . . . •.. . . .. . ... . • • • •. • • •. • .• . . • .. . . L.PPEIILJT versus WfJJ3 URLS • • • • 6 , .... .....,.••,. ... . . . • RESP0ND. T -OoO-

JUDGEMENT • ...- PLIL.t.,J.: In the Primary Court •' North Mara district at Nyamwaga, the 'espondent NLFTLLI WJJMU1-Ui sued the appellant NNIKO WLitBURA claim- ng a total of 10 cows and sh. 95/= as compensation for adultery. The respondent claimed in the Prir:ary Court that the appellant took away his wife and started living with her while he knew that she was still his lawful wife. He added that at one tine, he obtained a Cour'ft Order to the effect that the woman should leave the appellant and return to him. But soon after this, the appellant went back and took her away again. Since then he has continued living with her in adultery. On the other hand the appellant denied thes.e allegations. He said that as far as he is cone orneJ., the woman is his lawful wife and there can be no question that he is livin.g with her in adultery. He explained that he complied with all the customary rules for effect- ing a valid marriage. The parents of the woman allowd her to marry him and he paid to them the necessary bride price. He then na±ried the woman under customary law. In this he was supported by the woman's mother BOKE w/c SJYI who said that at one time the res- pondent married her daughter but this marriage lasted for only five months • The respondent was then refunded his bride price in full. Believing that her daughter was then free to marry another man, she married her to the

appellant who paid the necessary bride price. The Primary Court was of the view that the appellant married the woman at his own risk for it turned out that she was at the time still the respondent's wife the refund of the bride price notwith- standing because this can never in itself operate as dissolving a marriage. The district court agreed with this view and dismissed the appellant's appeal. This appeal is from these decisions. I agree with the view that refund of bride price in itself can- not operate to dissolve a marriage. In fact this should never be done before a marriage is dissolved. But I think that in determin- ing the appellant's liability, the lower courts never addressed themselves to the appellant's state of mind, they decided the case as if they were determining the liability of the mother Boke w/o Sabayi. The lower courts should have determined the appel- lantT s liability on the basis whether in the circumstances of this case, the appellant honestly believed that the woman he was taking in what he thought was a valid marriage was an unmarried woman If they had asked themselves this question, I am more than certain that they would have answered it in the affirmative. The appellant did not find the woman living alone, he found her living with her parents who assured him that she was unmarried. I an sure this ssurance was given honestly because the respondent's bride price had been refunded in full. With this assurance, the appellant