CHIGOLI GOMAHINGO v WILSON MCHANE 1983 TLR 311 (HC)

CHIGOLI GOMAHINGO v WILSON MCHANE 1983 TLR 311 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

May 27, 1983

CIVIL APPEAL 47 OF 1982

Flynote

Civil Practice and Procedure - Bride price - Claim for refund - Pleading and

procedure - F Rules of the Civil Procedure Code.

Family Law - Bride price - Refund of - Whether equitable where the claimant is a

wrong doer.

-Headnote

The appellant was appealing against the decision of the District Court of Dodoma

which G enhanced the refundable bride price to 10 cattle and 9 goats while the

Primary Court of Mvumi had ordered a refund of 7 cattle and 5 goats. It was on

evidence that the Respondent's own wrong-doing led to the breakdown of marriage

which he petitioned to dissolve in a proceeding which also joined the father-in-law

(present appellant) for H purposes of seeking refund of pride price.

Held: (i) A petition for divorce is a matrimonial proceeding but a claim for refund is

not; in the case of the former the jurisdiction, pleading and procedure are governed

by the I provisions of Part VI of the Law of Marriage Act, 1971 while the latter is a

normal suit in

1983 TLR p312

LUGAKINGIRA J

which the jurisdiction, pleading and procedure are governed by the relevant rules

relating A to civil suits;

(ii) where a party claiming refund of bride price is the sole cause of the breakdown

of marriage he cannot be entitled to recover even a portion of the bride price

for it is inequitable that he should gain from his own wrong doing. B

Case Information

Appeal allowed.

No case referred to. C

[zJDz]Judgment

Lugakingira, J.: The respondent was married to the appellant's daughter in 1974. For

reasons we shall see later he drove his wife away in or about 1978. Then in 1979 he

petitioned for divorce in the Primary Court at Mvumi and included in the petition a

D prayer for the refund of bride price amounting to 17 head of cattle and 12 goats.

He joined his father-in-law (the appellant) in that action. The trial court granted the

divorce and having found that the respondent was the guilty party, it ordered the

refund of seven head of cattle and five goats only. That was on 27/2/80. E

On the same day, the record shows more rather interesting entries. The appellant is

on record telling the court: Nitamlipa mdai ng'ombe wake 7 na mbuzi 5 hapo 1/3/80

ingawaje binti yangu hakuwa na kosa lolote lakini huo ni uamuzi wa mahakama

naridhika". It seems they touched him because shortly before the court had vested F

custody of the respondent's infant child in its mother and the respondent had been

ordered to furnish its maintenance. He therefore replied "Sitaki kabisa hao ng'ombe 7

mbuzi 5 wake. Mdaiwa No. 2 ale tu mie nasamehe". But seven days later he changed

his mind and appealed to the District Court contending that the refund ordered G

had been too small! According to him, too, the wife was the guilty party. The

learned resident magistrate who heard the appeal agreed with the respondent in

every respect and increased the refundable bride price to 10 head of cattle and 9 goats.

That prompted the present appeal.

I desire first to say a word on the question of procedure. As pointed out above the H

respondent joined in one action a prayer for divorce and a claim for refund of bride

price. He was also careful to join his father-in-law in the suit. Perhaps that was a

clever way of going about the matter but it occurs to me that it was improper. A

petition for divorce is a matrimonial proceeding but a claim for refund of bride price

is not. In the I case of the former the jurisdiction, pleading and procedure are

governed by the provisions of part VI of the Law of Marriage Act, 1971

1983 TLR p313

LUGAKINGIRA J

while the latter is a normal suit in which the jurisdiction, pleading and procedure are

A governed by the relevant rules relating to civil suits. I am aware that in Primary

Courts even matrimonial proceedings may be instituted, tried and disposed of in the

same manner as any civil proceeding instituted in such court and the provisions of the

civil procedure rules made under Cap. 537 would apply. That I think is the import of

B Section 93 of the Marriage Act, but the provision goes on to state such rules apply

mutatis mutandis, that is with the necessary changes having regard to the special

requirements of a matrimonial proceeding. It is thus necessary to refer a matrimonial

difficulty to a Reconciliation Board before petitioning in court but it is not necessary

to do so for the claim of bride price. The evidence necessary to establish a case for C

divorce would also not necessarily establish a claim for bride price. There is therefore

need to keep the two issues apart, and to dispose of divorce separately and first, as

previously and constantly directed by this court. That said, however, I am satisfied

that the irregularity occasioned no failure of justice in this case for there was no

dispute as to D the amount of bride price paid and there was in fact evidence upon

which the trial court could consider and determine the issue of refund.

Coming to the appeal, the appellant contends that the appellate magistrate erred in E

enhancing the refund as he did so without considering that the marriage subsisted for

six years and was blessed with two issues (one of which died). That however is not

correct. The appellate magistrate did consider the two factors and even held the

duration of the marriage to have been "very short". Nevertheless, he did misdirect

himself in another and very important aspect. He stated that "it is not disputed that

the F respondent's (in this appeal the appellant's) daughter was actually the cause of

the breakdown of the marriage" and this, unfortunately, is the complete opposite of

what is on record. According to the evidence, the respondent's case was that his wife

was in the habit of insulting him; that she had eaten two eggs; and that a chicken had

G disappeared and she had possibly eaten that too. Well, I should probably say that

it is all amusing. But apart from that I think these allegations or any of them, even if

proven, would not move a court of law to interfere in the sanctity of a marriage.

Divorce is a serious matter; its consequences go beyond the subjective convenience of

the immediate parties. It is therefore a hallowed rule that neither incompatibility of

temperament nor H the trifles of human aberration would justify its being decreed.

It is comforting that in this case the trial court did not in fact grant divorce on the

respondent's allegations - which in any case he did not prove. It did so on account of

his own intolerable guilt which was demonstrated in the following admissions: He

admitted that the wife had ceased insulting I him prior to the filing of the petition;

he

1983 TLR p314

admitted that he had boycotted her food, preferring that of his other wife; he

admitted A that he had chased her from the shamba in an endeavour to prevent her

form getting any food; he finally admitted that he had driven her from the

matrimonial home as he did not wish to risk any trouble in future. He was only

anxious to be refunded his animals. When then, the appellate magistrate stated that

the wife was the guilty party, he could B only have had a different record in mind.

I agree with the trial court that the respondent was the guilty party and the sole cause

of the breakdown of the marriage. I think that in those circumstances he was not

entitled to C recover even a portion of the bride price. It is inequitable that a party

should gain from his own wrong. The respondent must have appreciated this too as

demonstrated by his earlier decision to forego the refund.

As we have also seen, the appellant agreed to make the refund in protest for he

thought D he could not challenge the decision of the trial court. The justice of this

case thus demands that the appellant be relieved of all liability.

The appeal is accordingly allowed with costs. The lower courts' orders for refund are

set aside.

E Appeal allowed.

1983 TLR p314