Funuki Lifa vs Masonga Shalali (Civil Appeal 34 of 1997) [2000] TZHC 17 (20 November 2000)

IN THE HIGH COURT OF TANZANIA AT TAB ORA. (PC) CIVIL APPEAL NO. 3^ OF 1997 (arising from Urambo District Court Civil Appeal No. 30 of 1996 and Kaliua Primary Court Civil Case No. 2 of 1996) FUNUKI LIFA .. . . ................. - APPELLANT V E R S U S MASONGA SHALALI ................. .. - RESPONDENT J U D G M E N T MASANCHE, J,: These are objection proceedings, and they involve eight head «f cattle. The respondent Masong3 Shalali P.W.l, had gone to the Primary Court of Kaliua in Urambo District, and filed a suit claiming the eight head of cattle from Funuki Lifa the appellant* He alleged that Funuki Lifa had iraken away those cattle without reasons. The respondent lost the suit. It was held that that Funuki oould take the cattle as dowry for his daughter whose name was not disclosed. Masonga appealed to the District Court *f Urambo and heure the appeal was allowed in what appears to be a summary judgment. The facts of the case are not quite clear when one reads the recordo I have done my best, and these appear to be the facts of the case: A daughter of Funuki Lifa, was married to a boy aged 20 years, one Luhende s/o Kazungu. This boy, Luhende P.W.2, gave evidence in Court. He looks an< f i arrogant. For, in Court, when his time to give evidence <?ame, he was cross examined by Funuki, the father of the girl whose name we do not know - in fact he was cross examined by a father in law one we would expect he should have respect for: He replied;

"Mtoto wako wa kike nilimchukua, tulioana, nilimtorosha. Tulituma habari kwako. Tumekaa na binti yako miezi minne (4). Sikukuomba huyo mtoto. Sitakupa chochote. Nilimtorosha usiku. Nilimuoa." So, the story we get is that Luhende went*.' to take the daughter of Punuki without paying dowry. Now, because the daughter was taken up that way, somehow dowry had to be paid. And so, it seems (from my reading of the record) some eight cattle were seized by Punuki from the father of Luhende, Mzee Shalali J3/0. Songanyi. This old man features in the proceedings but never testified. So, eight cattle were taken from him, in his absence. It is said that •nly women were found at the home of this oldman when people went there to seize the cattle. So, in short,the objector in these proceedings is the son of Mzee Shalali and not Mzee Shalali himself. The respondent, Masonga Shalali who appears in these proceedings is a son. Another aspect of this case which is quite apparent is that there was a Civil Case No. 78/96 in which it is said Mzee Shalali had been sued for dowry for the marriage of his son* Now, up to that point, I am able to dispose of this appeal: Right from the beginning, it was improper for anyone to pin down Mzee Shalali Songa.yi for Civil matters of his son Luhende. It was also improper for Masonga s/o Shalali to feature in the case on behalf of the one who actually took the wife - the boy called Luhende - the arrogant chap. For, as Wilson J., queried in the case of Gwao bin Kilimo v: Kisunda bin Ifuti, I T.L.R. (R) 403 at p. 405:

"Is it gust according to our idea to take away a man’s property in order to compensate a party who has suffered injury at the hands of tfeerararfte son, the son being of £ull age and fully responsible in law for his own a ction? Wilson J., answered: "I hold most strongly the opinAofimtfent it is not gust .......••••" The general law, therefore, is, as was stated by my brother Ruhumbika J., in the case of Chikumbi Chiloko v: Mahada Mganga (PC) Civil Appeal No« 14/86 (Dodoma), that: "It is against genenal ideas of justice that a man should suffer or be punished directly either in person or in property for some wrong which he has not done himself." In a somewhat similar case, the case of Haserio Mwita v : Rioba Masero ^ L 9 6 9 J H.C.D. n. 199 a son who was of age asked the Court to compel his rich father pay d o v . r ry for him* It was held that a father is not legally bound to pay dowry for his son, when that son is of majority. Kimicha J., said: "I have in mind, that a parent has both moral and legal obligations for the moral and physical maintenance of his infant child. If he does not fulfill these obligations, the Courts Jjave inherent jurisdiction to force him to fulfill them. But, once the child reaches maturity, and is physically fit, the moral obligation remains but the legal obligation very much weakens or disappears all together. In this case the son is mature and physically fit ..... I am

(HQ.Civ.App.5V9Z' therefore of the view that brideprice is not a necessity which the father is legally bound to provide to his son at this stage of his life. The Courts have therefore no inherent jurisdiction to enforce it." There is yet another aspect to this case: Right from the beginning,the suit n - . ' , ought not to have been filed. First, it was filed by a person who had no locus standi - Masonga Shalali. And, secondly, it is over a subject matter which was cattle of the oldman Shalali Sangayi ~ cattle which could not be attached in order to pay for the dowry of the son Luhende. What do I do then? I quash all the proceedings so far, Jrhodie in the Primary Court and those in the District Court. The situation should revert to that one existing before the suits were filed in the Primary Court. At Tabora. 20th November, 2000. Parties: Abs ent. ORDER: This judgment is to be typed, certified, then sent to the District Magistrate Urambo. The District Magistrate there should «3ll the parties and have the judgment J. E« C. Masanohe Judge. read to them. J. E. C. MASANCHE JUDGE 20th November, 2000.