19730108 TZHC Mwanza

I VN ' -) . IN THN HIGH COURT Oi TNNL -\ -

AT N 7' (pc) kJIVIL PPL NO. 134 OF 197 1 (From the decision of the District Court of North Mara at Tarime in Civil Appeal No, 123 of 1970 before S.N. Kaji, hs q ,, I.N. & Nyamwaga Primary Court Civil Case No, 81 of 1970). IIIOBA s/o HWiRE ....... ,,,,,..,•.,,,, ,.,.,..,,,.,..., APPELLANT versus h' LISS/OidINChA ...... ,,,,,,,•, .......... ,,,,.,,,.....RESPOiDENT. .TTT1iTTi hL-KINDY, J. - The appellant, Rioba s/o Muhere, took his appeal against the judgement of the District Court 'of North Mare. The appellant was married to the sister of the responuent, and the trial court ordered that 26 heads of cattle be refunded, by the respondent, to the appellant, and costs amounting to She. 110/=. During the subsiatance of the marriage, the respondent utilised the bride wealth to pay for the marriage of his brother Chacha, As a result, when the court ordered the return of the bride wealth, the respondent had no cattle to give 'back - whether the same or others, but, some how, on different days, eleven heads of cattle were given back to the appellant and a balance of 15 remained. The respondent became aware that the respondent had paid the original cattle for the marriage of his brother, and he proceeded to move the court to get them for him, Chacha was married to the daughter of Mvita Ngoga. The cattle, in the custody of Mwita Ngoga, were attached. These were 9 heads of cattle. As

expected, Mita Ngoga comriienced objection proceedings contandin, that they were his property. In his defence, in the objection proceedings, the appellant said that he was merely following his cattle. after the court had held.that he was entitled to his bride vrealth. And in his defence in the objection proceedings, the respondent said that the 9 heads of cattle had ceased to be his property as he had given them to Chacha to pay his bride wealth. The assessors advised that the 9 heads of cattle be given to the appellant, and, although the trial magistrate was aware that the District Court, in Civil App. No. 123/70 of 1st October, 1970, rulei that it was quite proper for the respondent to gift the cattle to Chacha, held that the 9 heads of cattle be given to the appellant. The respondent, who was a party to the proceedings, took his appeal against the decision of the trial court in respect of the objection proceedings. He submitted that the appellant had been using unfair pressure to secure satisfaction of his dooreo and that he was not entitled to use methods which broke the marriage of his brother shacha to the daughter of Mwita Ngoga in an eftorl to get back the aalanoe of his cattle. As it can be seen, the appellant was a decree holder. He was entitled to get bok 26 heaas of cattle from the appellant. He had aireahy got back II heads of cattle. There was a balance of 15

heads of cattle to get back. uoh being the case, was the appellant entitled to use all methods available to enable him to get the balance of his battlev he is entitled' to his rights, as specified, in the decree, but, in the process of getting his rights satis- fied, he isot entitled to violate other people's rights. His right are not absolute. I agree with the views of the learned appel4ate magistrate that the apellant was not entitled to the 9 heads of cattle in possession of Mita Ngoga. The said heads of cattle became property of Mwita Ngoga because of the marriage of his daughter to Chacha. The appellant had trans- ferred ownership to the respondent when he paid the 26 heads of catt1e to the at flu* of Lis WsWriage o i. at *s raopoL•t belag the out, the reispejAwA had praprttay z'ights thes, and ito ce1d, therefore, transfer ownership to anybouy he liked such as by gift to his brother Chacha. Once he has done so, he retains no more ownership rights •ovr them. And as Chacha had pald them to itwita Ngoga, by custom, they became a' property of Mwita Ngoga,. Therefore, the appellant, having surrendered his rights, cannot possibly claim them or keep on followin6 them to whoever came into possession of them lawfully. He could not, therefore, claim them from the hanas of Mwita Ngoga, just 'because he could identify them as being prt of the cattle he paid as bride wealth to the

respondent. ...,. I However, if, in event of breac down of m .iagaajid it t ie appellant to have his brids wealth ratulned, c arne nees rj for it hapntd. ixi 1 this case, the responent had no leg.lduty t-rturn he same heads ofcattle to the appellant as he had receved : the1Th.. He would.. zly be required to return similar heacts of cattle IN hold otheric, a tie trial court seemed to tiinic, would bc.3 impracticable, nt only because such cattle c i die but beoausc ownership in such cattle 4 chan iccordin to the needs of the holders In this case the owner of the 9 haads of.,cat le was no longer the respondent but Mwita Ngoga with whom, to ciow a hase from the iJnglish Law of Contract, he had no privity of contià&t, Altough the trial court realised that Mvita Ngoe, came to own t.ae.. làfully,nd that by confirming the attachment, the marriage of the daudLter of goga to Chacha was being broken, it, nevertheless, thought it rcasoaable :. orde the appellant take the 9 heade of cattle since he had been abi-eto träce them, although it knew that the respondent was no loner the ownar f there is a custom which stipulates such manner of tracin cattle, as tws ciQne71 in -4 this case, although there is no such evidence 0f sL'ch cutorn, I. o-t hesitate to hold that the pactice gould be aint public poliej at least for two reasons. It ignores otfler peoples rigitS and it breaks Uow

: 711 marriages It is in accordanc.e with public policy that other peoples- rignts shoulct not be yiolated without laful caus and that mrriages should not be broken up in an effort to enforce ouqh riahts, In my view l therefore, the appellate court was right in setting aside the ruling of the trial court. iviwita Ngoga is the owner of the 9 heads of tattle. He should keep them. The appellant should wait until hip ex-wife is married • or,until the respondent comes to own other heads of cattle before he could get the balance of the 15 heads of cattle. It appears that there is a practice, existin 0 aniong curya's ihereby ex-husbands via,t until ex-wives are married before they can get back their bride wealth if the custodian of the bride wealth did not have bride wealth to be returned soon after • the dissolution of the marriage. I do not see i vhy the appellant should not be patient. He has already recoversU a large part of it. In my view, the resppndP4t was entitled to complain of the unfair pressure used on him when he was cioin b all he can to batisfy the decree against him. I have perused the grounds of appeal. I see no reaaon to interfere with the decision of the District Court. As a result, this appeal is dismissed. as no party apocared, I make no order as to costs. Parties should be notified of the results of this appeal. Delivered at Mwanza on the 8th day of January, 1973, Mwanza (ks. N. aL-kLLWY) 8th January, 1973, JU.Dc.