Faunuel s/o Nyamwitanga vs Kisika s/o Mweya (PC Civil Appeal No. 23 of 1984) [1985] TZHC 473 (6 December 1985)

I 'V • IN THE IH C WRT OF T1NZ2Ik ATMWNZA H .(c) C.L WL NO. 23 OF 1984 (From the decision of Muoma District Gourt Civil Appeal No.67/3 Original Civil Case No. 26/3 Zanaki Primary Oourt 1-if T11T t1flmMTrif -

• - versUa. KI$IK1 MWEY.Lt •••E•••.sess*e•.ea..s..•.s.•••:•ø•••a•• ISPaDENT JtJDGT MWILUSJ1NYA, J. The appellant Fa,nuel s/o Nyamiitanga had hi house attached in execution of a decree in which his brother Musxri s/o Nyarndtanga was the judgoment- debtor. The decree-holder was the present respondent Kisika slo Mwera. The. jud-nent-deb'tor -Muauri s/o Nyamwitanga was adjudged to refund brideprioe amounting to 9. heads of cattle.: But he only managed to pay 13 heads of cattle and hence the move of attaching the house of his rother who is the present appellant. The 'trial court held that it was improper to attach the property of the brother of-the jUdgment-debtor, because the obligation to meet the decree falls squarely on-the judnent-debtor alone and not on his relatives. However the District Court had a different stance: "Under customary law refund of dowry is spose&to be done theperson who received it and if he has no-property, the
• members of his family are supposed to do so. Nov that Musuri .t. has already paid a portion of the dowry the balance should be paid by the rest of his brothers". That is the view of the learned District Magistrate on the matte,. I am afraid the lea'rned. District Magistrate had bungled on the mater, First the learned District Magistrate embarked on an issue whieh had alead been decided in Zanaki Primary Court Civil Case No. 105/1976, I n that •as it was decided that the obligation to refund the whole bridep'iee was that of the judnent-debtor alone who is Musuri s/o Nyamwi-tanga • The j04ont2 debtor was satiafied,with that decision as he did not appeal. Thepofo?e it was wrong , on. principle to revive a dead issue. Even if the 3eav*èd District SoOstrate puzorted to eeriso his powers of revision he was wrong in law as the same has to be exercised within 12 months from the date of the decision as provided under S.22(4) of the Magistratp's Court 4t Np.2 of in here the decision was made some six years back. Therefore the District Magistrate was patently wrong to deal with a non-issue. ....,/2..

2 In any case even if he had power to revive the dead issue he waa wrong n princip1e t is not the law that wider customary law the members of the family are ob11gd to help to liquidate the debt of the judgmnt-debtor who fails to taef same. The Law of Persons under the is a'plicable to Musoma District. New under Rule 374 it is stipulated theren clearly that it 18 the obligation of the f'ither-in-law o1 h1plawful heir to refund brideprice in case of divorce. It would have been therefore p.erinent to investigate who was the lawful heir to the deceasej's estate so as to pin luni with the refund of brideprice. 0thecienbers of the familj are exempted from that obligation of refund of brideprioe. However that exercise was unnecessary ii this case as:.in Civil Gase No 105/76 it.was"decided that the obligation to' refund brideprice fell on Irusuri s/c Nyamwitanga In the event I allow the appeal with COfftSe The judgment of District Court is qua-shed while that of the Primary Court is restored0 6 LL

• ' Court-: A 'certified copy of the j'11gmen't'be read over to the parties by the District Ccrt: