19981201 TZHC Mbeya

IN THE Irr GH CCiURT OF TANZ.A_~IA (.PC) CIVIL AI1PEAL N0.50 OF 'i988 · (From the decision of the District ·court of _-;[le je District at Itumba in Civil 1'ppeal No'; 7 ·of· 1987 _and I rumba Primary Court Civil Case No. 6 of i987.). J • SICKSOI1.·111ATEYA •.••••••••••••• o • • • • • • • • • • . • • APPLid.ANT

VERSUS . . NDYA. ~ .• :... J1JMA JJITI e .-.·. e •· ~ ~e 4 • ~- e O O e e O e O ~ ~ • • <I O e e RESPONDENT .. . • ;_ MWil'OP0 2 _ J. The applicant Sickson s/o Mateya wants to go to the :\ourt ,'j ... . of Appeal of ranzania to oppose_ the judgement of tbis ·c·ouI'.t •. delivered by Hon. _Mcl;l.ome·, J. on 20/3/92 relating an fnvard. of. main- l, .:.-. ·by a . • 1 n~ceLcompensatio~. of 1_ head of cattle against him,. .. ,:.'J What happened is·. that the applicant'$ brother cglle-d · . Timmihy s/o· Mat~ya ·maJ;'~ied Joyce ci/o Mtindya ~he sister of the respondent Juma -e/o _Mtindya~ S"ne bore _2 children called Shila aiias Lu~ia d/o ma_teya and lViwaji alias·_Jus~in s/o 1¥1ateya. Both ·'· '•~-· • 4 • Joyce th~ mother of the 2 children a11:1 _her husband Tiinothy s/o . .. l .:. Mate ya lived in Zambia where the. 2. children were boi--n. Later f- on..they s~parated duE.3 to matrimonial .turbulences cu:ict'·the husband . .. ' ' chased away his wi.fe Joyce. who in 1979. rettlrne·d to Ile je District to their :place of domici-le v1here she came - to. . live with her brot~r the respontient-.·toge_.ther_. with_ the 2 :ochildre•• . The respondent· took . . ·- , full custody and care of the tv7o children together ·with their .:.·: mother. Since the husband . Timothy took no troub::te··. to re tre i ve his wrecked marriage the wife Joyce took the jud,icial action of suing Timothy her

husband through his brother Syabona: t:Jateya DW2 seeking . ii: ·judically divorce in 1983 _which she got and the. 2 children, vrerelkepji under her custody. ·· Later on the husband Timothy died in Zampia l3nd· t'r·..e ..- appellant being the real young ··bro.th.er of. the dece£is_ed. Tim.o_t,:h-Y I\'lateya claimed refund of dovr.cy due to the divorce granted by the court. .The appellant agreed to refund the· dowry - wh.i..ch. wa°s. assessed at 3 head of cattle dovrry refund. The rest :of the dowry if any was to be retained by the parents of Joyce since she had The 3 . cattle ' . . ·~ _ dowry refund was refll!'lded to the app?l;L~nt. At the ·sa1he"'tirne: the appe.llant-want "to take aymy'. the 2 children Lusia 0 Shila and uustin @ Mwaji from the respondent_., The respondent allowed :che children .to go with tp.eir uncle (:baba mdogo) v,rho Js the in:teri tor of the late Timothy Iffateya his . l'. .' ·" . .. • ;- ,. ·r • .. brother. But wi;~4 a, price. fop the ,.responq.~;nt .sued for c_ompe.r:isation years from 1979 upto ... -1;986, . - . when .,. . :;the, .. appel.l~nt . -..went to .colleqt . . .. ' . ~ . The respondent won the cRse and was awarded·on 15/2/87 by : • '( ✓_.: ... the Itumba P:pi~11_a'.ty _Court a mo.irJ.tainar,ce compensation ·. : . of.. one heaq. ...... /J' - 3 ... ,, of cattle wbich w~s valued at shs.6,000/= and his costs which was . ' . . . . . .. taxed at

~h~:,1,o;i..9/~. On appe3l to the District Court of Ile je the appellant. st.i,11 lost after additional evidence was taken ... '• ,; •., ,, 12.8.1987 o.f. cw;i. Mi ti~gi s/o Ii1beyanje. The evidence of CWl ,.· ... was Mi ti.ngi r,19eygnje taken on appeal by the trifl~ courttven more · damaging ·to the rel?pondent for he confirmed that the .refund. : :• .-. ,i .·• of 3 head of cattle . ·. ,. was- . . received by the appel;l.ant after his brother ' Timothy who ..was e_ntf tled to &;et the dowry refund had died before · . '.1:: being refunded the same. On ' a furt,her appeal_ to .this court his' appeal was: once more . ;: dismissed by ~n~. Mchome, J. on 20.• 1. 92 and he was ordered to refuridi the one head ,of _.cattle at the market value of the head .of cattle . as it wa's at the time of execution whiche-valuation should be • dohe by the, o:ri&i:nal trial court of I tumba Primary Court. ·.,.;, The applicant. stayed dormant without fo~lowing up his app·eal ··..·· from 1992 until now wheJt he has revived this. application following the executJ_o~ _pr~cess wluch the respmndent ~s initiated for . af.ter his attachment: of t~ appe~lant•::roperties, (_ payme,nt of ~he necessary :fees for· att~~bmen~Itumba Primary Court _on 9.8.96 -~ But, ·tt was "staJed by the District Registrar pending the· ~aring application for leave to , . ,. . . of thisLappeal to the Court of Appeal. . . . The

appellant is a very crurri.ing and unreliable· litigant •. J' Although t_p.e decision. of this court was made on 20/3/92 t·he applicant brought his applica·t;ion for leave to appeal to the Court of Appeal in June 1995 purportedly because the judgement - 4 - ~ -.... -~ .•·, t": • ,~ of this court was read over to bim on 5/4/1994~ This is most because likely a made up story !.. once Judgement" was delivered after the appeal had reached the stage of writing -tb.D judgement which was delivered on 20~)• 92 the a:)pe llant would not have waited for 2 years to gets--·its ~esults.B?ing the appellant he must have boon keento know the results of his appeal most likely. Thereafter, he has ' ., . waited for '3 ye·ars t9 pursue tins 'appl~cation so thnt it is heard • The ground 'of- ~p:osi tion to tilis app.ltc~tion raised by the :'respondent that;·th~s appJicati.on·vvas time barr~·c1·i·s quite plausible ,,. · and is sufficient to dispose· off this application which is time barred,. Even if it had been filed and heard in time there is no point of law involved for allowin& this appeal tp proceed to the 8ourt .. . · of Appeal. In his affid~vi t the applicant__ raised the point of whether maintainance of ·the two children w;:1s in accordinance with ·,l' .;,' ' ' Customary ,Law since th~ 2 cbildren were with the a1J].11icant for .. ( their m,other has disappe_ared. He also .. taued at length at

the ,,· he .:~aring of this application an~brou~~t Lusia @ Shila a/o Timothy Mate ya who is_ now a [;i~l of, 15 ,years in court in order : I to show that he 1 is still maintaining ' ;her without the help of .•• "'••") .. their mother Joyce d/o Mtindya Who. has disappeared and is not . ~ known of her whereabout.· '~ ., ··~he is~ue ·of maintainance of· chi,+dren is statutory ,not ·•:.- _,- I ... customary~ •iT~1e trial court by the .°learned Mr. M.U. Kibona (SPCM) ,. assisted by.gentlemen asses·sors Mal:i,:i;>olu and Tungalilege dealt . ',. . - 5 with tbis, point. at leneth and hBld tha·t,. I quote from the Judc;em.ent of ·the Primary Court:- ' 1Zaid.i ya u.halali wa amri y2. I.Iahakama katika , shauri No.116/83, pia fungu 125(3) :la· s·heria ya Ndoe IIwaka 1971 Ac·t Ho.-5, wakati ule watoto wote Shila na r,1wa ji umri wno ulikuwa bj,.la shaka' chini .ya iHic.ka 5. Hi.vyo, ho.ta kama ,b_aba yao angek:m.-vep·o bado · wangalikwenda kwa mama yao. Kwa hall hiyo, ushahidi wo. Syabona ninaukataa; 0 In other words if transla.ted into En:;lish in summary ,t~o :P-rimary Court of Itu.11ba . :.,_ held that: there was already a decision of the same court in Civil Case I~o. 116/83 thnt custody of· the 2:~ children was to- rem~in with the mother. ?foreovcr section 125(3) of ' Marriage Act No.5/1971 provides that the_ 2 children who vrere all under 5 years old for both Shila and IIwnji should

have remained under custody of ·th_e. ·mother. The Gviclence of Syabona therefore was rejected on th~t ground. This _was a proper exposition of the . law of custody of children. ' . Even under their m.1Stomary l~rw. of Wanyiha or Walamb;;,ra DW2 the sai,d _Syaboria ·Mateys the brother of the appellant testified on . o~th that they vvere duty l'ound u..11der 01.,i.stomary law to pe.y ' . compensation of .one head of., cattle per child for maintainance~- But the c·ourt :favoured them and awarded' only one head of cattle on the reason given that the tw.o clul~en had 'heall taken and maintained ·together at a goal by the respondent. The applican;t swore. in his 1;1.ffi9-crvi t :that he was the one who .. . 13u.1. . k:e:pt custody of the two child.fen.. , "this was a clear lie for in I. f. ........ /6 - 6 - the primary court he· said ,an oatfl again that his brother Syabona DWl is the one who kept custody of the 2 children. version pf the applicant.•s (DWl) and Stabona' s evidence '("!1W2) was rejected.' by the ·trial court quite properly be cause the testimony of PWl Juma Ntirtdya and PW2 Joyce Matip.dya was very strong and unre.butted that the 2. children were kept by the responclent from 1979 upto 1986 when the appellant want to take .. ' the theo. from the respondent togetner withlrefunded dowt-y of 3 head of cattle. He should have reared the 3 head of cattle for maintaining the

2 children istead of complaining that their mother· Joyce Matindya doesn't help her. ' ' ' This application an. any approaches taken gravel.y lacks on . . - mertt;any point of law needing ·going to the 6ourt of ·,Appeal~ . • So, this· application is dismissed with costs. ··• It means that .the appli.cant shall pay the one head of cattle as held by t.his court at the marl~~..~ p_rice of a grown up healthy l) cow or bull of today which shall be assessed qy the Itumba . Primary Court. . · ilso tile·~· was· the· trial court's taxed bill of shs~l,010/== which has :not· h6t been paid ais ye.t. '~ ' Since this is a monetary ." .·: . .-. entered dec:vetal sum .. (_ and taxed by ,t~E? trial cou~t on 16. 2.87 as ·'·' ;_ costs it shall a's u$ual ca;rry the ?ou:r:t interest of 12% p~a~ . - ~- - from 16/2/87.until the day it's paid~ I put the court interest at 12~ purp_osely to put value to the same shs.1,010/= which could have bought .a calf/heifer . , of 1 yearold in 1987 (a ·bull or cow used to cost shs:6,.000/== as assessed by ·the trial court on D -, ' ., " "f 7 - 16/2/87 - but will not buy even a hen today! The other decretal award of a hc01d of ·cattle compensation shall not carry a court interest be c2.use · the cow or bull virill attract the current market price as will be assessed by the \ I tUinba Primary Court.

JUDGE - 01~12~98 Cor2.m:.Hon. ,:;, J,;J•· L•K • 11IWJ.popo 1 J • "l\r: • A~plicant: Present in 1erson ti Sickson Mateya - :present in person Res)ondent - present in person ti Ju.ma Mtindya - present in person B/C: Kosam EI.KIJI/.ATIJ' lima.