Court name
High Court of Tanzania

Mohamed Ndwata vs Hamisi Omari () [1988] TZHC 24 (20 July 1988);

Law report citations
1988 TLR 137 (TZHC)
Media neutral citation
[1988] TZHC 24

Samatta, J.: This is a somewhat unusual litigation. The appellant had filed a suit in the Primary Court of Haubi, claiming from the respondent recovery of dowry and various traditional payments he made when he married the respondent's daughter. The marriage G was dissolved by the Primary Court in an earlier case, apparently on the ground that the wife had unreasonably refused to consummate the marriage. In that court the appellant was partly successful. In an unanimous decision the court decided that the appellant was entitled to recovery of the dowry which had been paid, which amounted to Shs. 500/=, and Shs. 3459/=, being made up of Shs. 3300/= as the total of some of H the traditional payments he had made, and Shs. 150/= being costs of the suit. The respondent was aggrieved by this decision. He strongly believed that the appellant was not entitled to any amount he was awarded. He accordingly appealed against the I decision to the District Court of

Kondoa. The appeal was partly successful. The District Court held that the appellant A (the respondent then) was entitled to a restitution of the bride price only. The appellant believed that the District Court's decision was not just. He still believes so. Hence the present appeal.
In my opinion the appeal must be dismissed. Whatever the legal position might have B been under the Customary Law or the Islamic law, the law now, as I apprehend it, is that once a marriage has taken place any gifts, whether traditional or otherwise, given in contemplation of the marriage, become the absolute property of the recipients. The C property cannot be diverted by subsequent divorce. This legal position is the effect of s. 71 of the Law of Marriage Act, 1971 (the Act), which reads as follows:
   71. A suit may be brought for the return of any gift made in contemplation of a marriage which  D has not been contracted, where the court is satisfied that it was made with the intention on the part of the giver that it should be conditional on the marriage being contracted, but not otherwise.
Any rules of Customary Law or Islamic Law which might have regulated the return of E gifts made in contemplation of a marriage are now superseded by the provisions of s. 71 of the Act, quoted above. The provisions of s. 3A of the Judicature and Application of Laws Ordinance, Cap. 453, make that perfectly clear. The section reads: F
   3A. Notwithstanding the provisions of this Act the rules of customary law and the rules of Islamic Law shall not apply in regard to any matter provided for in the Law of Marriage Act, 1971.  G
The various payments made by the appellant in contemplation of the marriage to the respondent's daughter were in effect, whatever name one attaches to them, gifts, and, H therefore, are covered by the provisions of s.71 of the Act. It follows that, in my considered opinion, in law the appellant is not entitled to the restitution of the said gifts.
  I Appeal dismissed.

A