19801128 TZHC Mwanza

w I • //: ( IN THE HIGH COURT OF TANZANIA / ,1 AT MWANZA (PC) CIVIL APPEAL NO. 67 OF 1979 .From the decision of the District Court of Senengeti at Mugumu in Civil Appeal No. 30 of 1979) :UdAI MWITA •000flsoO0000.•o0e,,ceae,SO0000OS000c APPELLANT versus j1!\i1A MWITA 00000000000..00000.4000000000000000000 RESPONDENT JUDGMENT NU1YERA 7 J., — The appellant sued for recovery of 12 head of cattle from respondent as damages for adultery. It was stated t1- at the respondent enticed the appellant's wife0 The facts which were not desputed were that the appellant married the offendiric wife in 1975 They never lived well. The wife frequently deserted and went to live elsewhere. The husband (appellant) got fed up and went to demand his bridewealth back. He was given part of it, leaving a balance of 12 head of cattle. Later he changed his minds and demanded his wife. By then the wife was living with respondent in concubinage. When she refused to join him, he filed this adultery suit. The respondent resisted the claim on- .çroudS that the appellant had alicady divorced the wife by demanding a refund of his bridewealth. The two assessors gave unanimous opinion (magistrate dissenting) that the appellant had not legally divorced the wife and the marriage was still substisting, As such he was entitled to damages for adultery. They however reduced ih' number of cattle claimed from 12 to 2 The respondent was still not satisfied and appealed to the District Court of Mugumu. There the district magistrate reversed the decision of the trial court0 He upheld the respondent (appellant in the District Court)'s ai:cTument that the woman had been divorced when the appellant received back part of his bridewealth. Hence this second appeal. This appeal must succeed 0 The learned district magistrate completely went out of his way. I quote parts of his judgment--- "Kwa descuri za watu wa Mkoa huu, ndoa ni kutoa mahari na kumpa baba wa binti. Pia talaka ni kurudishiwa mahari na binti kurudi kwao." And in another part of judgment he continues: tKwa desthri za huku binti thamani yake ni ngombe, na mtu diapotoa ng'ombe hukabidhiwa mke. Akikea naye akiYhoka humfukuza na kudai arudishiwe ng'ombe wake. 4Lkisharudishiwa basi hana wasjwasi tena Kabisa." Tu s9 of t udicature and Application of Laws Ordinance (as amended by s tL4 of the Law of Marriage Act) provides: 11 3A: Notthhstanding the provisions othis Act, the ruI of customary law and the ru,es of islamic law shall no.apply in regard to any matt.3r previded for in the lf of Marriage Act 1971." :arriages and d5orces are provided for inL the Law of Marriage -2-- The learned District Maqistrate cannot iqnore the provisions of the Act and pretend to apply what he calls "desturi za watu wa Mkoa huu," Even if he was applying the rules of Customary Law he was still astray0 The Declaration of Customary Law GN 279/63 (applicable to whole of Mara region) provides: ?t98 A. Persons can obtain a divorce without going to court but before an arbitration tribunal; B: By a judgment at the suit of husband or wife. 101: A. Husband and wife must obtain a divorce certificate whether the divorce case was decided by an arbitration tribunal or the native court. Ei A divorce register is to be kept by each court, C. A wife is considered married until she has received her divorce certificate. Whilst her divorce case is pending she is still married." It is quite clear that the marriage Act and the rules of customary law are identical. They don't recognise unilateral divorces. They provide procedures for granting divorce. The District Magistrate's propositions are therefore a mere fancy and to some extent offensive. he decision of the trial court was a right one. The appel1ant' mr,ith the woman in questionis still subsisting and he wasied'c damages for enticement. I allow the appeal set the ccn of the District Court and restore that of Tikiz4 Prirnary' 'çrt. The appeal to have his costs. T( 4 F. A. MUNYE JUDGE MWANZA 28/11/80