Deusdedit N. Makire vs Andricus Mwita (PC Civil App No. 28 of 1990) [1990] TZHC 89 (10 November 1990)

IN THE HIGH COURT OF TANZiNIA AT DAR ES SALA:irvi PC CIV APP NO. 1990 DEUSDBDIT N.MAKIREr••·•·•lPPELLANT versus ANDRICUS MWITA •...... ~ •.•• RBSPONDENT JUDGMENT This appeal ra,ii:;ics very little controversy if anY, for there is not much that could bP aid in support of both judgments of the lower cours. The appeJ.lant who is· the fathe::·-in-law of the respondent" was sued before the Primary court for re:fm1d o.f fJ.owry from the appellant who "•· ... had harl;-oured.1 the deserted wife of the respondent •. It is i:,ommon ground that the respondent paid the appellant shs, _30,000 as P-c.tilry, It is also not is dispute that when the parties appeared before tha Kinondoni Primary rourt e,ideuce was not led to show whether the res?ondent had contracted · marri,-age with the appellant I s daughter or not. It is evident :from the proceeding in the lower court that the appellant's daughter admit)ad being the wife of the resondent. She further adwitted that she has deserted her husband (the respondent) and that she does not tall intend toreturn to the matrimonial hoe~ Thereupon, the appellant told the court that he was ready and willjng to refund the sum of shs. 30,000 whJ~~~ he had receid from th, respondent as domry. It is also not in dispte hat the appellant told the same court that he would refund the money in three equal instillents commencing on Novmber 30,1989. During he same sessioned the appe•Lant's daughter told the court that She would refund the respondei:· shs 2r,000 and !hat the sum would be paid in instalmental basis commencing onoTember 30,1989. It was in this admission that the Primary ourt t ,.irtoridoni recorded the consented judgment. 'i'his jti.dgment was entered on '·· October 11,1989 but on January 10, '1990 the appellant filed an appeal against the judgment whereto was enteTed against him by the Primary Court. The learned District Magistrate upheld tpe decision of the lower court presumably because the lower court had entered judgment upon .admiision of liability by the appellant and. her daughter, Being aggrieved by that decision the appellant not appeals to this conrt, In his· petition of appeal before this conrt'the appellant has ataeked ' ' the decision of both courts below in that dory was not refundble b~cause the marriage has not been dissolved by a cou,:rt law. He further attackea the decision of both lower courts for entering judgment against her daughr who was not a party to the suit. . .. /2 ...

•. •; '-, • I :· .. i:J. o::: c t.l1B"'?. ·:,..""'' pints of law. I have refused to allow myself to be carried away by ·, the simple fact that judgment in te Primary Court was entered upon appellant's own admission of liability. I must also confess that. thi$ll. is not something that one can lightly dismiss the bais of the finding and conclussion of the Primary Court and that.of the Pist appellants court. My learned brother judge 9 Bahati on admitting tliis appeal had made the following rewark:- "Dr. admit to consider inter alia what cause of action f any there is in this case and whether douty can be returned before the marriage has been dissowed in the court," The central issue in this appeal is whether in the circumstances !haa res£)ondent is anti tled to the refund :Jf the sum of l} ,:ii,.QQO .. :r.h:i,ch h.e' paia the appellant as part payment of the dorYo If the answer is in the affirmatiye the net qu~~iianis who should refund the said monies? It is·evident from the proceedings in the trial court and the appellate court that these courts did not direct their minutes on the following question:-· First, whether ther8 was filarriage between the respondent and the appellant's daughter. econdaly, if the answer is in the affirmative whether the dolry can be refundable or not when the raarriage has not been dissolved. I must confess that these questions have raised great oJnoern and a:Uiety in my mind. '.i'his has particularly been so taking into conside:r.atio~ the fact that the apellant, who is the father of the· ldy in question, had admitted at the trial court of teteiving the doury now in question and that he was ready and willing to refund the names in question on three equal insta:,L-aents .• If behaYes me at this juncture to mention that -the. respondent had instituted proceedings at·th~ Kitondoni Primary court for the return of his deserted wife from the appellant 1 the father of the la.dy, where at the relevant.molllent she had· gone to live with her parents. The resondent.filed a law suit after failing to persual~ her io coe back. It would therefore appear that the respondent had been s2eking for an order from the Kinondoni Priary Court requiring the appellant to permit his daughter, the resvondent 1 s wife, to return to him. It was evident~ from the proceedings of the Priary U0urt that the wife did not wish to return to her husband and that her ation was not due to the appellant's objection. It is therefore clear that what necessitated the law suit was the wife's refusal to returrt to the respondent. Though there is no evidence to show that the par'ties w'3re "1.az:.iked I think we ,c.am prei:;um.e marriage from what has been alleged by the parties. AS aforesaid 9 he res0ndent did not obtain an order froci the 9ourt requiring the a)pellant to facibitate if not permit her daughter to return to him; .. ~lo•-.

·. J_/,{f .!ijj24fA¥l c •. ''llf"'!.1_-'·, • , '!11111!.!"1 - -;,.! .. . . . . ... 3 On the contrary judgment was for the refund of the dou±y and other incidental expenses to be met by the appellant's daughter who was not even a party to the proceedings in court. The question before this court now is whether the orders of the two courts are ,nable in law1 This court has held time and again that a @arriage is deemed valid and'. subsisting until its dissolution is proved, This couri has also tiues without nw:nber re ite:ra ted that no refund of dc11ry can 'be made where dLvorce has not yet Pccurred. Paragraph 59 o'f the Government .Notice 279 of 19,3 and the decision in SUNGWl s/o FUBUKA v. MANYANDA KASLUCHA! (1968)HCD!No. 84 are relevant to the resent case and lends suppor, to.my aforesaid findirig and condlussion .• I am also una·ble to forbear frou1 rewarking tha"J I directly di.sa:i;iprove . the method by which the proceedings were r· c;:ici.ducted in the Primary' CouJ,t · particularly the w£llner:tll:s .evidence of the re sp,ondent I s . wife was recorded and subsequ~ntly th~ co.urt ts order reqcuring had to pay 1he respondent. shs 25,000. Besde thei was ndthing in evidence to showhuw that figure was arri Ted at ;;md henc·e the basi ~ .. In the light of the forgoing I allow this appeal and seb aside the orders made by the lower courts, The respondent is howeTer 1 a1 liberty to institute fresh procedings for the divorc and ·hence 'the refund bf the ';)-1vJ:¥i bef-Jre- a court of comi3:'."8tcnt jurisdiction. Bearing in mind the circumstdncas of this ca;e, parties should bear their own cots. Coram-Mkwawa, . .:..g,J ! Parties present in person <ft?. I_ , n·~ _,., .... - . ,·· •i l-:-· -v-v """""". ,.,. J,J,l\lIKW;~ JUDGE (.A&) Court - The judgment is delivered in chawbers in the prese~ce of ~he parties this 10th day of Novewber, i9e9. -q-1-;· / __ ;;,. · '[1/,._AAI <£.,,..rlk J\JTu- JUDGE (AG,) 10/11/90 C