Ahmed Ismail vs Juma Rajabu [1982] TZHC 13 (22 August 1982)


Sisya, J:  In this action the Plaintiff 'Son-in-law' is seeking to recover F from his respondent  'father-in-law" Shs 21,000/= representing damages for enticement of his spouse, plus costs of the suit.  The defendant has denied liability to pay the said damages on the ground that his daughter is and/or was, at the material time, not married to the plaintiff.  He has also counter-claimed the sum of shs.3,500/= being G "damages for loss of expectation and School expenses which occurred when the plaintiff made the defendant's daughter pregnant and unable to proceed with her studies".
Para 7 of the written statement of defence raises a preliminary point.  It reads and I quote. H
7.   That the cause of action arose at Makanya in Kilimanjaro Region in the High Court Registry of Arusha and not Tanga.
It is common ground that the defendant resides at Makanya in the Same District of I Kilimanjaro Region; that the alleged marriage between the plaintiff and the  defendant's daughter was solemnised at Makanya;

and even the wrong complained of was committed at Mkanya.  It is only the Plaintiff A who resides at Amboni in the District and Region of Tanga:
     5. As regards para 7 the Plaintiff states that the High Court has jurisdiction all over Tanzania save the area under High Court of Zanzibar. B
True.  There is only one High Court of Tanzania whose area of jurisdiction extends throughout Tanzania save, of course, the isles.  The Plaintiff, however, missed the point.  Rule 5 (1) of the High Court Registries Rules, 1961, as amended by Rule 3 of the High Court Registries (Amendment) Rules, 1963, provides as follows: C
   5. (1)   Original Proceedings in the Court may be instituted either in the Registry at Dar es Salaam or in the District Registry (if any) for the area in which the cause of action arose of where the defendant resides. D
In terms of Rule 2 of the Principal Rules "the Court" here means the High Court.  Rule 3 reads: E
   In addition to the Registry at Dar es Salaam there shall be a District Registry at such places and for such areas as are set out in the schedule to those Rules ..... F
The said Schedule, as deleted and replaced by the High Court Registries (Consolidation) Notice, Government Notice 194 of 1974, the place of registry for all areas in Tanga Region is Tanga whereas the place of registry for all areas in the Kilimanjaro Region including, if I may say so, Makanya is Arusha.  It, therefore, goes without saying that the proper place for suing in the instant matter is, of course, Arusha.  By filling the suit at G Tanga the Plaintiff, therefore, erred.  I am, however, satisfied that the error has not occasioned any miscarriage of justice
Without prejudice to the foregoing the case for the Plaintiff is that towards the close of 1979 he fell in love with one Maimuna, the defendant's daughter.  It is not disputed that H the said Maimuna who, incidentally, did not give evidence at the trial for either or both parties was then pursuing a teaching course.  The two of them engaged themselves in premarital intercourse and this resulted in her becoming pregnant.  According to the Plaintiff she then urged him to pay dowry to the defendant so that the two of them could marry.  Eventually a Baraza was convened at which the defendant agreed that his Idaughter should marry the Plaintiff.  He, i.e.

defendant, demanded a cow as dowry.  The Plaintiff, however, paid out cash shs. 300/= A which represented a cow meant for Maimuna's mother according to the tradition and custom of the Wapare, a tribe to which both parties belong.  He was also required to pay and he, in fact, paid shs.50/= as Mazoka and a further shs.173/= for clothing his bride.  Thereafter the defendant told him that he could pay the rest of the dowry by B instalment.  He, i.e. the defendant, also agreed to continue to  accommodate Maimuna until the end of her pregnancy.  He, however, announced that Maimuna was the Plaintiff's wife.
The Plaintiff told the Court that in August, 1980 his 'wife', Maimuna, delivered.  He paid C for all the delivery expenses.  Maimuna and the child, however, continued to stay at the defendant's home until December, 1980, when the Plaintiff went and collected her and took her to Tanga where they cohabited peacefully.  While at Tanga their child contracted a disease which defied treatment by local medicinemen.  Eventually, upon D agreement between the Plaintiff, his wife, Maimuna, and the Plaintiff's mother, one Asha Sekondo (PW5) who happened to be staying with them at the material time, Maimuna took the child back to Makanya for further management by traditional medicinemen.  She left on 10/6/81.  While at Makanya she opted, with the Plaintiff's consent, to stay at E her parent's home, i.e the defendant's place.  The Plaintiff stated in his evidence that he followed his family at Makanya a couple of weeks later.  On his arrival he found his child in good health.  It had improved.  He then told the defendant that he was going back with his wife.  The defendant turned down this proposal.  He added that at most the Plaintiff could take along with him his own child only whereas he, i.e. the defendant, Fhimself remained with his own, i.e. Maimuna.  The matter was referred to the local elders but the defendant remained adamant.  He insisted that each one of them, that is to say the Plaintiff and Maimuna, should go his or her own way.  He, i.e. the defendant also demanded a refund of shs.3,500/= which he claimed represented the cost of educating G Maimuna up to the time the Plaintiff made her pregnant.  Eventually, the Plaintiff brought up this suit.
The defendant, in his defence, told the Court that his daughter, Maimuna, was dismissed from the Teachers' Training College, Tabora, where she was undergoing training to became a teacher because she was pregnant.  Upon making enquiries he discovered that H the plaintiff was responsible for the said pregnancy.  He made effort to contact the Plaintiff through the latter's father, Ismail Mshihiri, and uncle, Earnest Mshihiri.  Eventually the Plaintiff responded to his elders' call.  When questioned he conceded that he was responsible for Maimuna's pregnancy.  The defendant then demanded what is I traditionally known as Ng'ombe wa Mama (a head of cattle meant for the pregnant girl's mother).  He also

demanded a refund of all the monies which he had spent in educating Maimuna and A which he assessed at shs.3,500/=.  According to the defendant the proceedings of the meeting which was held in connection with this matter were recorded on a piece of paper which was tendered as Exh.P.3.
One Rajab Juma (DW4) said that he was the one who recorded the first portion thereof. B The rest was recorded by Earnest Mshihiri (PW2).  PW2, however, denied this.
According to the said piece of paper the defendant was claiming from the Plaintiff compensation for deflowering his daughter as well as making her pregnant, traditionally known as Nyeku and Mazoka.  He also demanded a refund of what he had spent in C educating his daughter.  The amount was then shs.1,750/=.
The defendant told the Court that what he had actually said was that he was prepared to accept shs.1,750/= only if the Plaintiff was prepared to pay there and then. D
The Plaintiff paid shs.350/= representing Mazoka and the girl's mother's cow.  Maimuna delivered in August, 1980, while she was still at her parent's home.  No maintenance for Maimuna and her child was forthcoming from the Plaintiff.  The defendant told the Court that round about the same time his wife fell sick.  It then became increasingly difficult for E him to maintain his sick wife as well as Maimuna and her child.  He talked over this problem with his own father and eventually the two of them agreed that the plaintiff should be made to maintain his child.  According to the defendant the quickest and simplest way of putting this into effect was to permit Maimuna to take the infant to its F father, the plaintiff, which he did.  Maimuna then went and, as it were began to cohabit with the plaintiff.  The two of them were not married but, so that defendant said, they were simply living together to look after their child.  Later Maimuna returned with the child and informed him that the child was not enjoying good health.  Subsequent G diagnosis revealed that the child was a victim of malnutrition.  The defendant resumed maintenance of the child but later complained to the plaintiff's relatives.  It was then decided that the plaintiff should make monthly remittances of  shs. 70/= towards the maintenance of the child.  This was done for two months only and the plaintiff defaulted again. H
The defendant told the Court that finally he summoned the Plaintiff's father and told him the plaintiff's short-comings.  He also reminded him of his claim for a refund of expenses for Maimuna's education.  Plaintiff's father advised the defendant to refer the matter to Court.  He then filed a suit against the plaintiff in Makanya Primary Court.  He tendered the I

official receipt on which the requisite Court fees were collected as an exhibit, Exh."I". A The said suit was subsequently withdrawn after the plaintiff had pledged to marry Maimuna.  The next thing the defendant saw in connection with the matter was Court summons and a copy of the plaint in this suit.
Both the plaintiff and the defendant called witnesses on their respective sides.  Those B who gave evidence on the plaintiff's side, including his uncle, PW2, and mother, PW5, gave evidence to the effect that the marriage between the plaintiff and the defendant's daughter was solemnised under customary law.  The evidence of the defendant and his witnesses is to the effect that no such marriage was or has ever been solemnised C between the said two persons.
It is common ground that the marriage between the plaintiff and Maimuna, that is if there is any, was not registered.  No marriage certificate was tendered in evidence and chances are that none was ever issued.  It is, likewise, now common knowledge that no D dowry in any form, or any part thereof, was and/or has been paid by the plaintiff.
The second issue as drawn is whether there was any marriage between the plaintiff and the respondent's daughter.  The onus of proof here, naturally, lies on the plaintiff.  It must be conceded that under the Law of Marriage Act both payment or nonpayment of E dowry and failure to register the marriage do not effect the validity of marriage; see Section 41(a) and (h).  The defence raised by the defendant in the instant case is, however, not that the marriage was not registered and/or that no dowry has ever been paid but, as aforesaid, rather that there has never been any marriage between the F supposed spouses at all.  In terms of section 55 a marriage certificate or an entry in any register of marriages is prima facie evidence of marriage.  Section 43, and in particular, sub-section (5) imposes a duty on parties to a marriage contracted according to customary law rites to register the marriage with the registrar or registration officer G concerned.  The plaintiff obviously did not perform this duty and no reason has been given for his failure to do so.  Now those who, deliberately or otherwise, fail to perform their duty imposed by the law itself and/or fail to follow the laid down and accepted procedures can only have themselves to blame when things turn against them.  I have had the chance of seeing and observing the plaintiff during the several occasions he H appeared before me at the hearing of this suit.  He is by no means a raw citizen.  One wonders, therefore, what reasons he has for failing to register the marriage, that is to say, if, indeed, there was any solemnised.  As the position stands what evidence, it may be asked, is there to show that he and Maimuna ever underwent a ceremony of marriage I albeit according to customary law rites?  Of course, in fairness to the plaintiff, there is his own word of

month as well as the word of mouth of his witnesses to the effect that the said marriage A was solemnised.  On the other hand there is also the word of mouth of the defendant and of an almost equal number of his witnesses to the effect that no such marriage was ever solemnised and that the ceremonies that were performed were in connection with the pregnancy which the defendant's daughter had outside wedlock and for which the B plaintiff was responsible.  On my part I see no reason why I should prefer the evidence of the plaintiff and his witnesses to that of the defendant and his witnesses.  The end result is that the plaintiff has failed to prove that he and the defendant's daughter, Maimuna, contracted any marriage according to customary law rites. C
It seems to me that the plaintiff and his witnesses are confusing the issue of making an unmarried girl pregnant and that of marriage under customary law rites. These are two different and separate issues and they must be viewed and treated as such. The mere fact that a man has made a girl pregnant does not, ipso facto, mean that he is married to her. D
There are another factors in the instant case which satisfy me the more that no marriage was indeed contracted between the  plaintiff and the defendant's daughter.  One of this is that it is common ground that dowry is an accepted and essential element of customary law marriage among the Wa-Pare.  It is in evidence, which stands uncontradicted and E unshaken, that the minimum amount of dowry payable among the Wa-Pare is four head of cattle and two goats.  The plaintiff and all his witnesses, his own mother (PW5) and Mshenga (PW2) included, miserably failed to pronounce how much dowry was demanded let alone paid.  It is inconceivable that talks could be had on marriage without F mention of how much dowry was being demanded or payable.  This is far and apart from the mode and style of payment.  Another factor is that it sounds inconceivable to me that after contracting the alleged marriage the plaintiff could have deemed it fit to allow his "wife" to continue staying at her own parent's home.  The plaintiff himself said G that it was because she was pregnant.  Indeed she was, so what?  It is possible that the plaintiff may have felt that it was inadvisable for Maimuna to travel to Tanga in the condition in which she was.  If so then, why, it may be asked was she not told to move to his own parent's home?  It is in evidence which is undisputed and which I accept that H the defendant and the plaintiff's parents are neighbours.  In fact they live under the same cell of ten houses!  Upon contracting the marriage, if indeed it was, then surely Maimuna could have comfortable walked over to the home of the plaintiff's parents and the plaintiff's mother (PW5) would have been available if need arose for her assistance.  Finally, even when Maimuna returned to Makanya with the sick child, she stayed at the I defendant's place.  Again, I see no

justification at all for this arrangement other than proof of lack of any marriage contract A between the plaintiff and Maimuna.
As aforesaid the defendant told the Court that he permitted Maimuna to go and cohabit with the plaintiff simply to ensure that the latter maintained his child.  In all the circumstances this explanation sounds plausible.  The tendency among many young B men of today to ignore their off spring living with their mothers, and away from themselves, is a fact too notorious to escape judicial notice of this Court.  It must, therefore, be found as a fact, which I do, that from December, 1980 to June 1981 Maimuna did cohabit with the Plaintiff.  In the absence of evidence of marriage the period is, unfortunately, too short to raise any presumption of marriage under section C 160(1) of the law of Marriage Act, 1971.
As a parting shot, although the plaintiff looks fairly knowledgeable and recalled several dates, he did not mention the date he claims Maimuna married him.  None of his witnesses too disclosed the date of marriage.  For the aforegoing reasons and on the D evidence adduced in this case I am far from persuaded on a preponderance of probabilities, that there ever was any customary law marriage, or marriage of any other form, between the plaintiff and the defendant's daughter.  This is enough to dispose of all the plaintiff's claims against the defendant because the former has no right to damages for E enticement even if I were to assume - which of course I do not - that the defendant did, indeed, allure his daughter, Maimuna into leaving and/or abandoning the Plaintiff.
I now turn to the counter claim.  By it the defendant seeks to  recover the money which he spent on Maimuna's education.  The basis of such a claim is  that the claimant has F suffered some loss.  It must be conceded that in the normal circumstances maintenance of infant children is the responsibility of the father.  It is also the duty of the father to educate his children.  By educating Maimuna up to the level which she had reached the defendant was simply discharging his duty under the law.  Whatever happened to G Maimuna the fact of the matter remains that she is the defendant's  child and she remains with the education or qualification which she managed to attain.  The concept of loss upon which the defendant can properly base his claim does not, therefore, arise.  For these reasons it goes without saying that the counter claim too is without basis and it also therefore fails. H
In the final event both the suit and the counter claim fail and the same are hereby dismissed.  Each party will, however, bear his own Costs.
I Order accordingly


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