20050906 TZCA Mwanza

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IN THE HIGH COURT OF TANZANIA

ATMWANZA (PC) CIVIL APPEAL NO. 160 OF 2004 (Appeal from the decision of the District Court of Bunda District at Bunda in Civil Appeal No. 5 of 2004. Original Civil Case No. 218 of 2003, Bunda Urban Primary Court. Before: R. B. Maganga, Esq. DM) SAMSON MUGANDA ................................ APPELLANT

VERSUS GODFREY MAJ URA ............................... RESPONDENT 2 nd August & 6 th Sptember,2005.

JUDGMENT MASANCHE, J. The appellant, Samson Muganda, had sued the respondent, Godfrey Maiga Majura, for a return of dowry. He had wanted to get back twelve cattle or 600,000/= cash, if the cattle were not available. He won the case. Godfrety Maiga Majura then appealed to the District Court. Here, the learned district magistrate, Mr. Maganga, has agreed with the judgment of the primary court, substantially.· But, he has ordered that only two head of cattle be returned. The first appellant Court has agreed, however, that the divorce came 1 about as a result of misbehaviour by the woman. Samson Muganda is aggrieved by that decision. He appeals to this court. I agree with Mr. Magoiga learned advocate for the appellant, that, ordinarily, this court is loath to interfere with awards, especially· when the granting of the figure was out of discretion. But, in this case, we get evidence that the woman was, actually the causer of the break down of marriage. It was pointed out by our late brother Lugakingira J (as he then was) in the same case cited by Mr. Magoiga, Chigoli Gomahingo v. Wilson Mchane [1983] T.L.R. 311, that in cases of refund of dowry, the Court must ascertain who was the causer of the break down of marriage. Lugakingira J has pointed out that, in fact, if the man was the sole causer, he is not entitled to recover anything. Conversely, if the woman was the sole causer, she is not entitled to anything. However, the first appellate Court, has said, two head of cattle would be enough. I do not agree with that. The true position of law was pointed out by the late Saidi J (as he then was) in Mwaipopo s/o Mwakibale v .. Ntelina d/o Mbimbile [1969] H.C.D. no.

50. Saidi J said: "By paragraph 52 (b) of the Customary Law (Declaration) Order 1963, no dowry or any part of it is to be refunded to the husband if the wife has borne him children. Paragraph 54 gives the Court discretion to modify 2 '-{ • .. 1 ' . . paragraph 52 in consideration of the guilt of either spouse, and gives the Court power to consider other matters which are relevant, though not specified in the order, for example, re-marriage of the divorced wife and the payment of another dowry" As I have said before, an appellate Court can interfere into onwards given by trial courts, but there must be cogent reasons for doing so. The present case shows that the woman was the sole causer of the breakdown of the marriage. The woman bore the appellant no child at all. The primary Court was right in awarding the appellant the return of all the dowry - the twelve cattle. The appeal is allowed with costs. Judgment of the primary Court is restored. ~ J. E~. MA . 1,\ Mwahza. 6th September,2005. Appellant: Mr. Magoiga. Respondent: present in person. 3