Mboje s/o Kilala vs Ngila Mashila (PC Civil Appeal No 38 of 1971) [1973] TZHC 16 (11 April 1973)

. - - r • __ L. JL;-ii COu.. .L O 1 7 ' . AT 1fV1A1TZA. ... :- •' : ' • • ( ic) civii. i'PE.PL i\O. 38 OF 1971 ; . .. S :(B&ra the deci'sion 0±. the Dis.trtct Court of I'Iaswa at IiW j.-C.i'Vj1 : -- ADpeaJ.:-No..65, .oi 197 0. before N..E.R. .Iia1zsungu1a, Esq. D.M.. nd Imaiaeko Prinary Court C±vil Case No. 37 of 1970). Lm0ji s/ o iiiiA . . . . . AP LLAIT .. . :. .: . • : . •: versus.: . : • • . NGILA ITASHILA:- , , . ......... . . . . RSP0TD11TT JTIDGMEIiT. Hr.-IthnJ, J..:.• This.. isa second appa1.-by TbojOWoIa1c1a. . The respondent, . NCila s/o:.. 1 .:ashj_16Lj sued birnfo± the alieCociu1tery \Th hisvifo and c1aiincr . dnae o:5 headi3 of cattle, custody o•3 children. He ' WaS. sucocssf1..atthc tr±1, ;but: & pca1.th cicirn f:dagos was disa11Owd •1 the. o the1throo chi1d1i thvoiv of therospo- ncen-t;. The apo11itook her appol to cOurt. The respondent ivarried to Ngoo o lashuri tWenty yors agO. For .riou;resons. thèi.niarri ed li.o Was : su do es :..i -vas riddled with disputes :±' various nature .inc1ud1n the 11eed adüiteiy of the wife with r:varj,oiis mdh Inthe .end :tho wifo ftth.ráOdëxt'aid diappeàd . goroidthat hd onud divOree ü ñotstëfu1 tO I .aptCfrdthe'rooiddfr .0'dsj,, sixteen years ago g she met the appellant, at a liquor shop, adiThét greod that they loved each other and the appcllant took her as a wife. Since that tié. Up tohe t:irn.df the esond-ht the appellant, Ngô lived vith th âppëflant . -thgh iwr was no iom3 TidappclIant' a df eWstht t11e1m his d . / ith..Ngohd id.ot, 1oW that sh st'iU--th& wif ófothepq±son,

• it, he viLt d: bf&d t ngo1&, he war not told anything unusu1. N.eert1ie1-ss the tria couri hl'd tb -it thnce •-.' ..the.tiarriagc-btween the re ôndentóf NOdrh&d th disolved, •.golo .romained tho ifo of the rcspóh'dent d th&dfore - 'thô -latidnship, thich lasuoc Lor eixtoOn yars, bet 'eon --5'pc1lant and Tolo, ad dultcrou and ci'ei'o'd the rpondët a etiled t . duae tricJ •:&. ::c'i.rt. danages is't1on in theb heads \ i of cattle. The tiaJ. co.r also awarded cuifrody o the eluictron to the •re5bfldélTb: though bherc was .no.iidexe t&hOw chXldren Wore coL1c-e1ed and/or werc born They wer& ±rcatcd as children of th ? mhrro and y thcrcfOro, i.hey belonged o respondent a1tho'u3i they may not havi been conceive by him or born' in xu hàuoc wart -tlie* were stifl living tbgeher. - - The appdl1-aé istat held that -tie - kit for baed. H.-c 1IId ht' th5 period within wh61+' t1ii siiit sho'hvo bei1 iIod was three years from the time the right accrued. In his viow he spid the suit should iôth&rebeei- entert'ained1 - Iowr ho iii thid to sub-rlo (4) of Rule 3 of the Liagistratea' Courts (Limitation of Proceedings under Customaxy Law) Rules, 1964, being Goveri- ient Notice No. 311 of 1964, and held that tid respondent failed to disclose suffiàient cause for not proceeding witb. thesñt within the required time. The respondent allbgod that he had bcenaearcbing for his wife for 14 years un1.heoUn- h', but Ngolo said that this could not be true because her' rnt1Wthat she was living with the appellant and that ii' he wanted, thQresq1a4en could have found her earlier than he did. She alleged that t1iç respo'dent was making weajth by these adulter soi'tb aid tht h had p'àinisod to amass .wealth when she decided to leave him. The appellate mgistrato hold that it was inconceivable that the respondent would not have found his wife if he hact really boon in a search of her. I e said that Jiaswa Dlst.Liet was Smr , i -i size and the iospondeni coulc t easily hevo found us ho ,antc The record shovci tifat Nolo was living with the appellant within township of Hz.swa'itseli'. Having regard to these matters, with dU' I agree with the opinion of the learned appellate maistrate sufficient cause was disclosed for permitting the ._ eejjS &O • . aduitcry suit out of time, On balance of probability, t1i'o had be on the sIde of th appellant. According to Nolo1>V • ..,. 4o di success-1y filed suia of rn$iTar , cg-inst o W r L

cgainst the cpe1lan -t and yet, in spit of all the alleged iisioro1ities of his own wife, he defended, succecs:u1ly, a suit filed by his wife in which she sought divo±ce. It nny well b argued that those activities of the appellant Were eviilence of his intention to continue to live with his wife, but if so, why did he wait for sixteen :ears . to begin these proceedings or to find his wife who was living happily with the appellant. If he was really interested in preseriing his iarriage end not just to xtract wealth suts1 hc u1& h fou.id- fla-s 'fo l.cr tiu i-adiCk ad-wuld 5ve ii tho chd' 4i if I athL. I 1ou1i' vary fXh ler h a Uoc of & reo iiec,by wisis otiier tian those of pres±'ving hi with Ngolo and of securing custody of :he. children. I&his defence,Jbhe .epellat said that the fault was not his that he lived with Egolo for all these years, and that .Ngoloassuredhinthct. c.1d i9Jusband. lTgolo nade no reference to this allegation, and both lower courts did not appeax to hce considered it. In his appeal petition, the appellant reiterated his stand that he was misle.by.Egolo,. .INgo1oad reisled, the appellant, that was beside the point, as tlie duty is upon the arel1axit to find out whether or not Egolo was or was not rearrie (See Section 129 of the notorious G.E. 279 of 1963). Although t1aeap±dc1i áIif a should not be guided by a start with disbeief.oYwhai one is told, ye -b a reaoiable perso 'isuch. cases, - - takes precaution to see `61-itit the voian lac. irtends to have serious relation- ship, such as rearria,e, s indeed liee o As the Gxlel and appellate court found in Lus cabe the ape-liont did no i,ake reasonable 8tepsto ascertain the statuis or Egolo beforc he decidOd to live wi'bh: hea as :. husband and wife. Nevor-bhee, the respondent' o1dirn in this respect w.ae time The oppellatL Cow. having foune tai ti'c ccultey suii nsa re.me )ared, I rl to understand why tne sane cxi..net was not an lied in respecc o c1iiof the children. It is iy vies iat, u i5 claire fell irnder t hc sere itcu 3 of e schedule o tre Court (Limitation of 'oceedi.ip lmeei Ousomar Law) Ru]!as, 1964 it fell 1 &ae 'oup of 1 obae.i. civil 'rona anc, hci€fore - ti'e rsponc1 ent al oulci a10 lae.ve darned custoc.y of hc c1ai1den within t1ire v rs I f inC ,. teet t osna esons 'ice applied 112. r spocu o tic eCul t L uit ali i a c1im ?S e Besi.2s & ildren -iaac b an livin Yith ole ric appcl1 t .or sixtcei yec_is. ' r is no evieice o bn.ir presen -grs. is no evidc s to air paternity. Ii oily i-act in favour o ohs. rspondet was that the three chiidrnwre born ;duizJLtiTh .subistc Othis marriago wi ii 1T010 al-thou )h tncy era iot livii-i or.. Thine e1s of 1the cnilcrcn \iere nou Co isic.eed. 1 find, u'tClL O ne o& of the appc1laxt hla s]jo'havebeenllowed by the DistrictrCouit. I accrdingiy..:.do so. Thd ordr that the repondent should havd , custodyo2 ties. tIraeedilcixen is accordin1y set asidô Thc children hould 'enin in .th2 custody. where they have lived for the lat ecxs of their rspctivelivos, The appellant is allowed to have his:fiill costs which in. event.of'dispute.of: the actual aOioun to be paid the J)lstricb Court of asu i cirecccL to assess. Delivbred in Coui at lw lvaiiza o e t h o llthd-y of Apr4, 1973. (z Y. ORD:R: Bothpartioehou11d be ndtif'ied-thi- reaults of this dpeal through the Di rict Court of aswa.