MAKUNGU KAHINDI v LUHUMBIKA NYANDA 1983 TLR 63 (HC)

MAKUNGU KAHINDI v LUHUMBIKA NYANDA 1983 TLR 63 (HC)

Court High Court of Tanzania - Mwanza

Judge Chua J

(PC) CIVIL APPEAL 57 OF 1982

Flynote

Family Law - Dissolution of Marriage - Return of dowry from father in law -

Whether B husband entitled to claim offspring of animals paid in bridewealth - S. 45

of the Law of Persons.

-Headnote

The appellant had divorced his wife with whom he had lived for four years. There

was one issue to the marriage. He claimed for return of dowry, including offspring of

the C animals, from the respondent, his father in law. The Primary Court Nyambiti

awarded him 6 head of cattle. His appeal to the District Court was dismissed. Hence

this appeal.

Held: (i) Under s.45 of the Law of Persons the offspring of the animals paid in D

bridewealth, whether cattle or goats, are not to be returned. Similarly, if the

bridewealth has been paid in money no payment of interest can be claimed;

(ii) where no grounds of divorce were established then under s.52 (B) of the E

Law of Persons no bridewealth was returnable where there was an issue to the

marriage.

Case Information

Appeal dismissed.

No case referred to. F

[zJDz]Judgment

Chua, J. The appellant divorced his wife with whom he had lived for four years.

There was one issue to the marriage. He claimed for return of dowry from the

respondent, his father in law. The Primary Court Nyambiti awarded him 6 head of

cattle. His appeal to G the District Court was dismissed. Hence this appeal.

From the record of the Primary Court it appears that the appellant had divorced his

wife on the grounds of desertion. It is unfortunate that the trial magistrate did not call

for the divorce case file to ascertain the cause of the breakdown of the marriage.

Nevertheless H from what was deposed in court it was evident that the wife had

absconded from the matrimonial home and could not be traced at her father's home.

When she was finally discovered the appellant decided that he was no longer

interested in continuing to live with her. It seemed therefore not factually correct to

assert like I

1983 TLR p64

the learned District Magistrate and Primary Court Magistrate did that the appellant

had A no reason to divorce his wife.

The appellant stated that he paid 17 head of cattle as dowry but he was now claiming

27 head of cattle because they had multiplied. But the law on this point is clearly laid

down under s.45 of the Law of Persons which stipulates: B

The offspring of the animals paid in bridewealth whether cattle or goats, are

not to be returned. Similarly, if the bridewealth has been paid in money no payment

of interest can be claimed. C

Next to be considered is whether the Primary Court applied correct principles in

assessing the number of cattle to be returned. The Primary Court took this to have

been a case where no grounds of divorce existed but as I have stated above there was

D evidence of desertion which was not contradicted by the respondent. Had it been

true that no grounds of divorce were established then under s.52 (B) of the Law of

Persons no bridewealth was returnable since there was one issue to the marriage.

Taking into account the fact that the wife was guilty of desertion, that there was one

issue E to the marriage, that the parties had lived together for 4 years and that the

wife has a chance of remarrying the award of 6 head of cattle in my view was fair and

reasonable and therefore save as indicated hereinabove the appeal is dismissed. The

appellant to be paid six (6) head of cattle consisting of five (5) cows and one (1) bull.

The appellant to F pay costs of this appeal.

Appeal dismissed.

1983 TLR p64

G