[1928] EACA 22

## COURT OF APPEAL FOR EASTERN AFRICA.

Before PICKERING, C. J. (Zanzibar), STEPHENS, Acting C. J. (Kenya) and JOHNSON, Acting J. (Kenya).

## FAZALDIN SATARDIN (Appellant) (Original Plaintiff) 22.

## DIN MAHOMED and HAJRA BEGUM (Respondents) (Original Defendants). C. A. $14/1928$ .

Mohammedan Law—contract of marriage.

Held: --That a betrothal, to which one of the persons whose marriage was contemplated was not a party, would not be enforced, and further held that parents in Uganda have no authority to contract for the marriage

Shapley for appellant.

Daly for respondent.

PICKERING, C. J.-In this case the learned trial Judge held that a bethrothal to which one of the persons whose marriage was contemplated was not a party, would not be enforced by the Courts in Uganda; and further that parents in Uganda have no authority to contract for the marriage of their children whether they profess the Mohamedan religion or not. With those rulings In the suit before him a betrothal I respectfully agree. arranged by a parent without the consent of his daughter was pleaded by the prospective bridegroom as an enforceable contract and, alleging the girl's refusal to marry, an injunction to prevent her from marrying another man was claimed or in the alternative damages for breach of the contract to marry. The learned trial Judge rightly refused to grant an injunction or to award damages. It is possible that in the event of the appellant's acquiescence in the recision of any purported betrothal he may find himself in a position to claim a return of ornaments and other presents given and accepted in contemplation of marriage. But this suit has been lodged in a form inconsistent with any such claim. So long as the appellant seeks to uphold the betrothal he cannot obtain any assistance from the Protectorate Courts in Uganda. In my opinion this appeal fails and should be dismissed with costs.

STEPHENS, Acting C. J.—This is an appeal by the plaintiff from the Judgment of MR. JUSTICE GUTHRIE-SMITH of Uganda.

The Respondents are father and daughter. According to the plaintiff in the month of July, 1925, at Jinja, it was verbally agreed between the brother of the plaintiff on his behalf and the first defendant that the first defendant would give his daughter the second defendant in marriage with the plaintiff. According to the custom of the parties a ceremony of betrothal took place and it was definitely arranged that the marriage of the plaintiff and the second defendant would take place at a later date. In pursuance of custom the plaintiff made certain presents to the second defendant and her sisters as shown on List A attached to the plaint, and also made certain payments and was put to certain expenses as shown in the account annexed to the plaint and marked "B".

The first defendant refuses to ratify and carry out the contract made between the plaintiff and himself and avers that the second defendant declines to proceed with the said marriage. The plaintiff alleges that it is an established custom of the community to which the parties belong that a betrothal cannot be cancelled without the consent of both parties unless the party seeking to cancel such betrothal first pays to the other party the damages so occasioned, and such damages must be paid before the party in default shall marry anyone else.

The plaintiff therefore claimed:-

- (a) a declaration that the betrothal is valid and subsisting; - (b) that the second defendant return to the plaintiff the articles mentioned in List "A" or in the alternative their value; - (c) that the first defendant pay to the plaintiff Sh. $3,625$ special damages; and Sh. 5,000 for moral and intellectual damages; - $(d)$ an injunction to restrain the second defendant from marrying anybody else until such articles or their value are returned:

(e) alternative relief.

The defendants raised a preliminary point that the plaint discloses no cause of action. The learned Judge after referring to the case of Johnstone v. Beattie 10 Cl. and F. 42, 114, held that the betrothal was void as against the woman because she was not a party to it, and void as against the father as being an attempt to exercise a right which he does not possess. He therefore struck out the plaint and dismissed the action with costs.

It is from this Judgment that the appellant now appeals.

The present appeal is very similar to one which came before this Court exactly two years ago, namely Narain Singh s/o Jhanda Singh v. (1) Ganga Singh and (2) Premkore w/o

Ganaa Singh (Civil Appeal No. 12 of 1926). The Judges who formed the Court on that occasion were SIR THOMAS TOMLINSON, Chief Justice of Zanzibar, MR. JUSTICE GUTHRIE-SMITH (the Judge now appealed from) and myself. The appellant claimed the return of Sh. 3,200 which he alleged he had paid to the defendants as preliminary to his proposed marriage with their daughter. The marriage did not take place. The Court below found that any payment made by plaintiff was directly in consideration of the defendant's daughter being given to him in marriage, and held that being a marriage brokerage contract it was void as being against public policy. SIR THOMAS TOMLINSON in the course of his Judgment says: "The principle, however, upon which the plaintiff's claim rests has been very fully discussed by the Court of Appeal in the case of Harmann $v$ . Charlesworth (1905, 2 K. B. 123). This also was a claim for the return of money paid in respect of a marriage brokerage contract and many authorities were cited ". SIR THOMAS then proceeds to quote a passage from the Judgment of MATHEW. L. J., on p. 136: "The real nature of such a contract (i.e. a marriage brokerage contract) is that it is *nudum* pactum, and the law declares that it imports no consideration, and that no rights arise under it. The position when a contract is *nudum pactum* and executory, is that while unperformed either party may rescind it. There was an executory contract, no legal considera. tion and consequently the plaintiff was entitled to rescind and recover the money she had paid ".

The Chief Justice then proceeds to say: "Applying this principle to the facts before us, I am of opinion that as the defendants have not carried out their part of the contract by giving their daughter in marriage a suit will lie by the plaintiff to recover whatever money he has paid ".

All three Judges of the Court of Appeal for Eastern Africa held the same view.

As to the meaning of public policy, I might refer to my own Judgment in that case, where opinions held by different Judges were quoted.

In the appeal now before us, I have no shadow of doubt in my own mind that the appellant is entitled to sue for the presents he has given and for the money he has spent in contemplation of the marriage, but he cannot recover anything for moral and intellectual damages.

I may say that the plaint might have been worded somewhat differently from what it is. The plaintiff claims a declaration that the betrothal is valid and subsisting. There should have been in my opinion after the word subsisting the word " or ". It is perfectly clear to my mind what the plaintiff claims. He asks either for a declaration that the betrothal is valid and

subsisting or failing that return of the gifts and money spent, and an injunction to restrain the second defendant from marrying anybody else until such articles or their value are returned.

In view of the opinions held by the three Judges of the Court of Appeal for Eastern Africa in the above-cited case (Civil. Appeal No 12 of 1926), I hold that the appellant is entitled to sue the defendants for the return of the presents given or their value and for money spent in anticipation of the marriage, but not for an injunction prohibiting the marriage until the presents. or their value have been returned, and therefore this case should in my opinion be sent back to the Court below for the determination of this question. The appeal must be allowed and the appellant should have his costs of this appeal. The costs in the Court below should follow the event of the result of the ultimate finding in the case.

JOHNSON, Acting J.—This is an appeal from the dismissal of a suit by GUTHRIE-SMITH. J. In his plaint the plaintiff claimed a declaration that the betrothal set out in the first paragraph was valid and subsisting; (b) that the articles enumerated in an annexure be returned or in the alternative their value; (c) that the defendants pay the value of these articles and certain amounts set out in a second annexure as special damages to the extent of Sh. 3,825 and a further amount of Sh. 5,000 as general damages; and (d) he further asked for an injunction to restrain the second defendant from marrying elsewhere prior to the return of the articles and for payment of damages.

The learned Judge held the alleged contract void on the grounds that (1) as against the second defendant she was not a party to it, and (2) as against the first defendant, the father of the second defendant, as being an attempt to exercise a right he does not possess, and dismissed the suit.

Thanks to the recollection of STEPHENS, J., we have had the advantage of reading the judgments of the Court of Appeal in C. A. $12/26$ . GUTHRIE-SMITH, J., was one of the Judges in that appeal. The Court held that the alleged contract was a marriage brokerage contract and was void. The present alleged. contract appears to me to be a similar one to that and I respectfully agree with the Judgments then given upon the point. The learned Judge in this matter rightly held the alleged contract void. So holding, the first prayer would be of course refused.

But the second and third prayers, it is urged, should have been granted. I fail to see upon what grounds. These claims appear to be incompatible with either the claim (a) or the claim $(d)$ . One of them, the Sh. 5,000 moral and intellectual

damages, has been abandoned and with regard to the other it is sufficient to note that there is no suggestion of a demand, a necessary preliminary to an action in detinue.

There is no allegation of such demand in the plant, in which this case differs from the case cited, in which a demand was pleaded and in which this Court remitted the case to the Court below for determination of the amount actually paid.

I agree with the judgment of the learned Judge in the case appealed from and would dismiss the appeal with costs to the respondents.