Bahati, Ag. J.: This is an appeal by Salum Athumani who was the respondent in the B lower court against the judgment and order of the Primary Court at Magole Kilosa District. In the said Primary Court Mwamini Hamisi hereinafter called the respondent brought a suit against Salum Athumani hereinafter called the appellant claiming to be granted divorce because of, inter alia, cruelty. The respondent told the lower court that C the appellant used to beat her very much and would not maintain her properly. The two had been to the Conciliation Board often and the appellant would not change his ways. The respondent called her father as a witness who said that he was aware of the unsatisfactory way the appellant and the respondent were living. He had witnessed the D respondent running away from her husband due to troubles she experienced with her husband. He also said that the appellant and respondent had been to the Conciliation Board and even to the courts often. At one time the appellant filed a suit against the E respondent for the return of his dowry but the matter was not pursued.
At the close of the respondent's case the appellant said this:
Mimi sitaapa lolote tena sitaeleza lolote natosheka na ushahidi wa mke wangu na wa baba yake.
In English the above is equivalent to this: F
I will not swear to anything nor will I say anything. I am satisfied with the evidence of my wife and her father.
The lower court unanimously found that there was evidence that the marriage had G broken down irreparably and proceeded to grant the divorce. The court was also of the unanimous view that according to Muslim Law which governed the parties no dowry was returnable where the offending party was the husband. The court therefore ordered H that no dowry would be returned.
The appellant aggrieved by this judgment and especially the order that no dowry would be returned to him appealed to this court. His memorandum of appeal is in the form of a letter giving the facts of the case in the lower court and even giving other facts not on I record in the casefile of the lower court. It is not really easy to
decipher what the appellant's argument is. In court the appellant argued that he had A originally filed a suit against the respondent in Mvomero Primary Court apparently to recover his dowry. Since the respondent could not repay the dowry or appeal against the decision ordering her to repay the dowry if she wanted to leave the appellant, the respondent had no alternative but to live with the appellant again. When the respondent B filed the present suit, the appellant told the Primary Court Magistrate that his matter had already been decided in Mvomero Primary Court Morogoro District. Since the Magistrate went on to hear the case all the same the appellant went to the District Magistrate Kilosa to complain and the District Magistrate wrote a letter saying that the matter was res judicata and that the Primary Court Magistrate did not follow these C instructions and he proceeded to grant divorce to the respondent without any evidence. It should be borne in mind here that this court is to be guided by the record of the Primary Court. It would appear from the record of the Primary Court that at the outset of the case in answer to the suit the appellant who was then the respondent said that he D disputed the claim of the respondent who was the petitioner in that case. The appellant went on to tell the Primary Court that the matter before the court had been decided at Mvomero Primary Court civil cases No. 26/79 and 22/79. The first case was in respect of a suit by the appellant for the compulsion of his wife to live with him. The second case E was for claim of dowry but the court did not order return of dowry because the marriage was still subsisting. Following this statement by the appellant the Primary Court ordered the appellant to bring a copy of the judgment in each case from Mvomero Primary Court. The record goes on to show that the appellant told the court that he did F not want to bring any copy of judgment from the Mvomero Court. That is when the present case proceeded to hearing. I should pause here and say that if ever there were such suits before filed by the appellant in Mvomero court they would not affect this case. The case to compel cohabitation would be contrary to section 140 of the Law of G Marriage Act and the second case for the return of dowry would be premature because the marriage was still subsisting. The letter referred to by the appellant in his address to the court does not in any way instruct the Primary Court Magistrate at Magole to dismiss H this case. I need not say more than this here with regard to the letter from the District Magistrate Kilosa.
Having said that, what is the complaint of the appellant before this court? I see none. He did not cross-examine the witnesses nor did he adduce any evidence in defence. The Primary Court was I
satisfied, and in my view correctly so, that there was evidence that the marriage had A broken down irreparably and it granted the divorce. I am satisfied that there was evidence sufficient to justify the grant of divorce. It would appear however that the real thing the appellant is interested in is the return of his dowry. We shall therefore consider B whether he is entitled to return of his dowry in the circumstances of this case.
According to the Law of Persons as stated in the Government Notice No. 279 of 1963 there is no refund of bridewealth where the guilty party is the husband. But I should hasten to add that this is not the law applicable here. It is mentioned here simply to provide some comparison with the Islamic Law which is applicable in this case. Now, C according to Islamic law dowry is paid to the wife unlike bride-wealth in customary law which is paid to the father or other relatives of the wife. This is clearly stated by Sheikh Ali Hemed El Buhriy in his book Kitabu cha Nikahi under the heading "Mahari". The issue here is whether the appellant is entitled to the dowry he paid in consideration of the D marriage. First of all, it is not clear what the appellant paid. It is permissible under Islamic Law to pay the dowry to the wife and then bride-wealth to the relatives of the wife. In Hussein Mbwana v Amiri Chongwe reported in A Digest of Appeals from Local Courts 1963 Vol.X Spry, J. as he then was, had this to say on the subject of E bride-wealth in Islamic marriages:
In Islamic law the wife is absolutely entitled to the dowry as her own personal property. On the other hand, in African customary law the brideprice goes not to the woman but to members of her family. Islamic law does not recognize bride price, but on the other F hand I am not aware of any provision which expressly forbids it. I see no reason, therefore, why brideprice should not be paid under customary law at the time when an Islamic marriage takes place just as it frequently is on the celebration of an African Christian marriage.
Any question concerning brideprice, however, will be decided under customary law, G since the matter is outside the sphere of Islamic law.
As mentioned above, it is not in evidence nor is it clear what the appellant paid, whether what he paid was dowry to his wife or brideprice to her father. However, according to the proceedings in the Primary Court it would appear that court was considering dowry H and not brideprice. The two assessors and the Magistrate were in agreement that no dowry was refundable in circumstances like in this case. The lower court had accepted what the appellant had stated that he had paid shs. 820/= as dowry to his wife that is I why the court based its decision on Islamic law. I am in agreement with the decision
of the lower court on this point. I have come to this conclusion in view of what is A contained in Sheikh Ali Hemedi El Buhriy's Kitabu cha Nikahi. Although in this booklet the learned author does not deal with a similar situation like this one, there are indications to the effect that dowry is not returnable when there has been a consummation of marriage. The learned author talks of dowry in circumstances where the husband has B either not paid it at all or has not paid it in full. Paragraphs 41 and 42 in this booklet mentioned above do indicate that dowry is not returnable after consummation of marriage. The position is even stronger here where the husband has been found to be the guilty party. This appeal is therefore dismissed with costs. C