Civil
Appeal
MWAYERA
J:
At
the conclusion of the trial of this matter, the court a
quo
dismissed the claim for payment of the outstanding lobola.
The
court found that there was material breach of the very tenants of
lobola. The court concluded that the appellant was not entitled to
payment of the balance of lobola because his daughter who was married
to the respondent committed adultery with multiple partners ranging
from the respondent's brothers, nephews and the herd boy. The court
also found that customarily a husband is allowed to divorce an
adulterous wife and then if he has paid lobola in full he is entitled
to a refund of the lobola from the in laws.
The
appellant approached this court seeking to have the dismissal of his
claim for payment of lobola set aside. The grounds of appeal as
outlined by the appellant are as follows:
1(a)
That the appellant's daughter was acting on the respondent's,
that is her husband's instructions and was safeguarding her
husband's cultural values.
(b)
That it was not the duty of the appellant's daughter to research on
the truth of her husband's cultural values but only to do so as per
husband's instructions and demands as a respectful wife.
(c)
That the appellant's daughter was forced to confess under duress
from the respondent and his relatives.
(d)
That the child of the appellant's daughter did not breast feed
after confession but only after they had both visited a prophet.
(e)
That the appellant's daughter was not in wilful wrong doing this is
evidenced by her not being in any other affair with outsiders.
2.
That the learned magistrate erred in dismissing the appellant's
claim when it was clear that the parties had engaged into a lobola
agreement which was not completely paid off.
3.
That the trial court misdirected itself in dismissing this claim when
the averments by the appellant that his daughter and respondent's
brothers had never been to any court for adultery claims.
The
facts of the matter as discerned from the record of proceedings and
submissions by the parties can be summarised as follows:
The
appellant's daughter was customarily married to the respondent. The
respondent and his wife the appellant's daughter had a
misunderstanding after the birth of their child. Central to the
dispute is the fact that the newly born was not breast feeding.
Evidence adduced from the respondent and respondent's wife is to
the effect that the child started to breast feed after a confession
by the respondent's wife. The confession which was uncontroverted
evidence in the court a
quo was
to the effect that the respondent's wife had during the subsistence
of the marriage to the respondent been intimate with the respondent's
elder, younger brothers, nephew and herd boy.
It
was after evidence of intimate relations between the respondent's
wife and multiple partners that the respondent took his wife back to
her parents.
Irked
by this move the appellant then approached the court a
quo
claiming for the balance of outstanding lobola.
The
Magistrate's Court, basing on the evidence before it concluded that
the confession by the appellant's daughter was voluntarily given.
Further the appellant and his daughter did not dispute that the
daughter had intimate relations with multiple partners. The appellant
sought to argue unsuccessfully that his daughter was wayward in line
with respondent's family custom. The herd boy and nephew were not
the respondent's brothers. In any event other than the appellant's
mere say so there was no evidence to confirm the promiscuous conduct
by the respondent was in accordance with custom. No one else in the
respondent's family had been subjected to such custom according to
the appellant's daughter.
It
was with this background that the trial magistrate concluded that the
appellant's daughter engaged in adulterous relationship with
multiple partners and that she by so doing breached the marriage
relationship. This conduct was ruled as not entitling the appellant
to payment of the outstanding lobola.
The
court a quo properly spelt out that under customary law a man who
would have paid lobola is entitled to a refund if the wife engages in
adultery. Further the court a
quo
stated that parents whose child would have committed adultery are not
entitled to payment of the balances of lobola.
The
very purpose of lobola is what was flouted by the appellant's
daughter thereby severing the marriage relationship. The respondent
did not choose to condone the adultery but to divorce his wife for
the gross misconduct.
In
coming up with the disposition of the matter whereby the court a
quo
dismissed the claim for the balance of lobola the trial magistrate
properly exercised his discretion and we find no fault in his
findings.
Accordingly
the appeal lacks merit and must fail.
It
is ordered that the appeal be and is hereby dismissed with costs.
UCHENA
J: agrees …………………………………….
