Court name
High Court of Tanzania

Daniel Mlingwa vs Mwaja Mkotyo () [1997] TZHC 1 (10 January 1997);

Law report citations
1997 TLR 39 (TZHC)
Media neutral citation
[1997] TZHC 1

Msoffe J:
In the Primary Court at Chipanga, Dodoma, the appellant sued the respondent in a claim of seven head of cattle being compensation for adultery. The said trial court was satisfied that there was a valid and subsisting marriage between the appellant and PW2 Veronica Chakachaka and that the respondent did actually commit   H adultery as evidenced in the fact that he has since been living with PW2 as her husband. In the circumstances, the said court was of the view that since adultery was proved and established there was no way the respondent could escape civil liability. It however held that   I

  A the claim of seven head of cattle was on the high side; and so made an award of only three head of cattle for compensation of the adultery in issue.
Dissatisfied, the respondent appealed to the District Court at Dodoma where he won. The District Court made a number of findings and conclusions, but in brief it   B was of the view that there was no valid marriage between the appellant and PW2; and therefore that the claim would have no legal basis.
This is an appeal against the decision of the District Court. Mr Nyangarika learned advocate appeared for the appellant. Mr Njulumi learned advocate appeared and resisted the appeal on behalf of the respondent. Both counsel have filed written   C submissions to which the court is grateful for their useful assistance.
There is no dispute that the case in the two respective lower courts was essentially decided on the basis of credibility of witnesses. As this court has held   D on more than one occasion, credibility is a question of fact and an appeal court should not disturb a finding of fact based on credibility unless it is manifestly unreasonable -- Lalata Msangawe v Henry Mwamlima (1) and Wilson Thomas v R (2). The issue is whether there was any material basis upon which the appellate   E District Court could fault the decision of the trial Primary Court which was based on the credibility of witnesses as aforesaid.
In the petition of appeal a total number of five grounds have been raised and   F canvassed in submissions made by counsel. However, all of them basically allege that the decision of the District Court was against the weight of the available evidence. In the premise, I propose to deal with the appeal generally in determining whether or not there is any valid complain in the appeal.
In my judgment, the appeal has merit. A look at the case in its entirety will show   G that there is no serious dispute that there is a marriage contracted under customary rites between the appellant and PW2. All the witnesses (including the respondent) except perhaps PW4 William Chakachaka were affirmative of this fact. If so, the view held by the District court that there was no evidence establishing that the said marriage existed would appear to me to be unsupported by the evidence on record.   H
Perhaps one comment which, I hope, may be of benefit to the learned Resident Magistrate who sat in the aforesaid first appeal. Somewhere in the judgment he appeared to be saying that payment of dowry would be a necessary prerequisite to validate a marriage. A look at the provisions of ss 13, 14, 15, 16 and 17 of The Law of    I

Marriage Act No 5 of 1971 will show that this view is not correct as it is nowhere   A mentioned therein that payment of dowry should be necessary in a valid marriage. Non-payment of dowry would not invalidate an otherwise valid marriage.
Much was said by learned counsel about whether or not there would be a rebuttable presumption of marriage under s 160 of The Law of Marriage Act 5 of   B 1971 in the circumstances of the case. I need not waste much time on this point which apparently was not canvassed by anybody in the two respective lower courts. It will therefore be unfair to deal with it at this stage. However, if one may be excused to say in passing, the issue shall not arise at all. One says so because it   C was not an issue before the two lower courts as aforesaid; and in any case the issue would not arise in the midst of evidence by the relevant witnesses that a marriage actually existed between the appellant and PW2. If so, why should there then be talk or mention about a presumption.   D
The appeal is allowed with costs here and below. The decision of the District Court is set aside and that of the trial Primary Court is restored.   E
1997 TLR p41