Musa v Abubaker (Civil Appeal No. 17 of 1942) [1942] EACA 56 (1 January 1942)

## APPELLATE CIVIL

BEFORE THACKER, J. (with Chief Kathi as an assessor)

BWANA BIN BWANA MUSA, Appellant (Original Defendant)

## SUO BIN ABUBAKER, Respondent (Original Plaintiff)

## Civil Appeal No. 17 of 1942 \*

Appeal from Mudir's Court-Mohammedan Law-No cause of action by Mohammedan Law-No evidence by plaintiff-No proof of damage to plaintiff's character-No jurisdiction in Mudir's Court to entertain suit-Decree of nullity made without jurisdiction.

The plaintiff in the lower Court sued the defendant for Sh. 200 damages. in that the defendant had secretly and without the plaintiff's consent married the plaintiff's daughter. It was alleged that this act of the defendant had degraded the plaintiff and damaged his reputation. No evidence was given by or for the plaintiff-his Vakil merely made a statement and the defendant then made a statement (it was not shown whether on oath or not), and was crossexamined by the plaintiff's Vakil. Although it was no part of the plaintiff's claim, the Mudir, in addition to awarding Sh. 200 damages to the plaintiff declared the marriage null and void.

Held $(22-10-42)$ .—(1) That no such action lies in Mohammedan Law.

(2) Even assuming such an action lies, there was no evidence nor proof by the plaintiff that his character had been damaged.

(3) That it is improper and without jurisdiction to declare a marriage to be null and void when that relief is not prayed for by either party.

(4) That a Mudir has no jurisdiction to try a suit of this nature. It is a matter to be tried by the Kathi's Court.

Parties not present, nor represented.

Appeal allowed with costs.

JUDGMENT.—This appeal raises questions almost entirely of Mohammedan Law and procedure and the Court must be guided by the advice tendered to it by the learned Chief Kathi. He informs me that there is no cause of action as. has been put forward by the plaintiff in Mohammedan Law. It is a cause of action unknown to any branch of Mohammedan Law.

It is to be noted also that although the plaintiff did not ask for a decree of nullity of marriage, nevertheless the Mudir made such an order. This is improper.

It is to be further observed that no evidence whatever was given by or for the plaintiff—his Vakil merely made a statement and then defendant replied, it is not stated whether on oath or not, and was then cross-examined. As the record stands, there was no evidence for the plaintiff's case. There is no proof from the plaintiff how or to what extent the plaintiff's character has been defamed or damaged.

I am also informed that the Mudir had no jurisdiction to try this suit. It. is a matter to be tried by the Kathi's Court. Principally, for the reason that the plaintiff has succeeded in the Mudir's Court and for a cause of action unknown to Mohammedan Law and for the other reasons set out, this appeal is allowed and the order that the defendant do pay to the plaintiff Sh. 200 is set aside. The appellant will have his costs here and in the Court below.