Ndisa Mwambyale vs Benson Mwakyalanda ((PC) Civil Appeal No. 56 of 1995) [2000] TZHC 602 (3 August 2000)

•· IN THE HIGH COURT OF TANZANIA AT MBEYA (PC) CIVIL APPEAL NO. 56 OF 1995 (From the,decision of the District of Rungwe at Tukuyu in Civil Appeal No~ 29 ·of ·1995 - Original Ci;viLCase No. 9 of 1995 of ·Masak~ Primary Court) NPJSA .MWAMBYALE o ~ .. o •• - •••• ., o ••••••• • JlPPEILANT . VERSUS .. ' BENSON MWi,KYALI ... NDA - ~ ••• o • • c ~ - •••• o • • RESPONDENT -,.-', . JUDGEMENT ~~ tl?Oro, ;;. Th- appellant Ndisa s/o Mwa.rnbyale is t,h. fa.ther of her .daughter one AtU:gariile d/o Kakongobe who was married to the i;:e 9 pondent Brinson Mwakyalanda in 1982 and was divorced on 9/2./1995. . The divorce cfcree has been admitted as exhibit R.l by consent of both,partiesat the hearing of both parties. J.:fter the divorce, the respondent filed- :this suit seeking for rfutld of all the dowry he paid to the parent of his bride~·,· The trial ! court of Masako Primary Court the appellant liable to refund only 2 head of cattle out' of the 3 head of cattle 9,Ild Shs.900/= paid~ The appellant on appeo.l to the Rungwe District Court lost again.·. H~ has appealed·· to this appeal. The judgE.ment of the Masoko Primary Court as delivered.by learned Ae .A·. Mwaipopo (PCM) and the gentleme~_.as~essors Almas s/o Mwaipopo' and T. ·· Simba was to the affect that the respondent .had been married to \ .. '. . . the appellant's daughter for 13 years; the divorced wife had born 2:. live children and had two additional spontenous arbortions and lastly that the respondent was the party to blame for having abandoned his wife for 5·yoars after he sent her back to the appellant who tept heI! and maintained her and his two children throughout that period •...

2·- 1-l.ctually up to now 8 years later all the two children are still being maintained ruid kept by the. appellant. From the 0 last finding of fact of the trial_ court the abandanement of his· wife '3.nd two. chi:Ldren for 5 years amounted to a legal desertion of his wife which deprived ·her ·of both necessary ma_trimonial mainte- nance and sexual consort in a marriage-~ For these marriage faults of the respondent lie. can not be rewarded with ony refund of dowry at all. Moreover, she bore him 2 live children and conceived "2· pre-gnancies which got spoilt with the necessary risks to· her __ life,. __ With these faults it was gravely err9nous for both two lower courts to award any refund of dowry at all to the r.espondent., The trial court made-another error, it never .gave the 0 ppellant a chance to· defend himself. After the respondent --estified as PW.1 the appellant said he agreed that the respondent paid 3 head of cattle and 900/= as dowry. After saying that the court ordered that judgement would be: delivered before the appellant testified as a·defence witness. The ·appellant was not sworn as a witness at all in the proceedings •. T9-e appellant's annoul'lcmeht that he agreed dowry waspaid to him did not mean that he admitted to refund that entire dowry. He should have been given a chance to testify as a defence witness to oppose the claim for refund of the dowry. In his_ evidence as PW.4-- the respondent nver touched-.at all at his·guilt for having deserted his wife The factual firidings of the trial court that the respondent deserted

his daughter for 5 years and that he was the party to blame must hav~ emanated from matrimonial cause No.101/94 which the respondent himself-. cited in his testimony as the basis of the claim f6r refund of dowry. WhPct the appellant told the 1st appellate court and this court that it was the rel;ipondent who caus_ed the breakup of the marriage due to his abandonment of his wife for,5. years together with 2 children must be taken to be true for it is backed up by the unanimous verdict of all the " •• /3

• 3 - three members of the trial court. Both decisions of the two lower courts awarding refund of the 2 head of cattle as dowry to the respondent were gravely erronous. They are hereby quashed. The appellaDt shall refund nothing to the respondent. This appeal is allowed with costs in this court and the two lower courts. The appellant is free to open up another suit claiming for maintainance of the respondent's wife for 5 years before the divorce and for maintaining the 2 children for 8 years up to nowo . The respondent is a very selfish and irresponsible husband and father to his divorced DISTRICT P.EGISTR./\R .,..~~-"'..,..,.·~---- 3/8/2000