19750613 TZHC Mwanza

XT' )III/L c IN TI-I]? HIGH COURT OF TANZANIA AT MIMTZA (Pa) CIVIL APPEAL No. 16 OF 1975 (Prom the decision of the District Court of Lianza at Mwanza in Civil Appeal No. 36 of 1972 before E.K. Mutaki, Esq., D.M. and Kalemera Primary Court Civil Case No. 60/72) V1ARI1OBAd/oWAIBE................APPELL1NT versus MARWA 5/0 MlTCINA . . $ . . . . . . . . . . . . . RESPONDENT - CLAIM: Returii of gifts paid in consideration of marriage - shs. 90/=$ JIJDG1VIENT KATITI, AG.J.: The appellant Warioba Waibo was sued in the Primary Court by the respondent for the return of sh2. 904/ worth of gifts given by him in contemplation of marrying or contracting a marriage between him and the appellant' s daughter - a marriage that never was. The Primary Court Kalemora unaninously held in favour of the respondent and so did the District Court to which the appellant appealed un- successfully. This is her second appeal. Her grounds of appeal have been considered in the right perspective and in juxta-position with the evidence as adducod in the Primary Court and as ultimately dealt with by the Court of second instance. The evidence given 9 overwhelmingly points to the fact that the gifts in question were indeed given. The evidence of the respondent and his witnesses preponderantly signifies this and the grounds of appeal are too subordinate and extremely in subCenrient position in relation?and considering the evidence on record. Grounds of appeal like whoo would the appellant get dowry from, why was the ongagerie:zt not put in writing and that the respondent was too old to marry the appellant t o daughter may show how the appellant despises the respo:.1.:it but all the sane, the evidence immutably shows that the appellant c1ii offer her daughter to the respondent to be aproscctive wife, the respondent happily agreed and hence the gifts he has proved he gave. On the return of gifts we have the provisions of Section 71 of ' the Marriage Act 1971 whic1i state:- "A suit may be brougit for the return of any gift made in contemplation of marriage which has not been contracted, whore the Court is satisfied that it was made with the intention on the part of the giver that it should be conditional on marriage, being contracted, but not otherwise." On the evidenCe the Courts below were so satisfied and I have notht' useful to add. Since the marriage never niaterialisod and yet the gifts wore made with marriage in mind and to the imowledge of the appellant, she has to re-turn the sane. The appeal fails with costs. It is dismissed with costs. 13th June, 1975. -tG. JWY-E