A. W. Mapugilo v. J.F.K. Gunza, Civ. App. 6-DDM-72, 30/6/72, Kwikima, J.

 

A. W. Mapugilo v. J.F.K. Gunza, Civ. App. 6-DDM-72, 30/6/72, Kwikima, J.

The appellant sought to obtain Shs. 2000/= from the respondent whom he alleged to have seduced, deflowered and enticed from home his 15 year old daughter. The Mbeya Resident Magistrate with whom the claim was lodged dismissed it because, in his words, ‘the plaintiff ……… failed to establish a cause of action.”

            Held: (1) “In dismissing the suit, the learned magistrate very rightly relied upon Abraham v. Owden (1971) H.C.D. n. 426, a case the facts of which are in no way dissimilar to those in the current case. Like the present case, Abraham’s case hinged on the time-honoured Nyakyusa custom of KUPOSOLA” by which custom men used to enrich themselves by exacting penalties from adulterers and even those who deflowered or even supply fornicated with their daughters. The learned judge who decided the Abraham case hammered the final nail into the coffin of “LUPOSO” (i.e. the penalty payable upon “KUPOSOLWA) when he observed: “It could perhaps be justifiably argued that the law as it is does not provide sufficient protection to innocent girls who are glibly persuaded to go to bed with men who have no intention to marry them. But these are issues for which this court can provide not answer …… the law has spoken with a clear voice……. That no action lies in enticement or for loss of one’s daughter’s virginity.” That, it is feared, happens to be the exact position in this case. The learned judge who dismissed Abraham’s appeal was in much the same position as this Court is now. The law as it stands just does not afford aggrieved father any remedy.” (2) “In his memorandum the appellant relies on the case of Saidi Sefu v. Aidan Mwambeta (1967) H.C.D. n. 180 in which Said, J. (as he formerly was held: “Damages can be claimed by the parents for injured feelings and for the dishonour to the daughter and the family caused by the seducer.” The report in the High Court Digest is so brief that one cannot tell what tribe Saudi and Aidan were. In this case it appears that customary law was applicable. That was why the learned Resident Magistrate relied on Abraham’s case. Again it is hard to see how the decision in Haidi Sefu was arrived at in view of Rule 89 of the Customary law Declaration which does not support the ruling which was made in Saidi Sefu’s case. In Abraham’s case, my learned brother Mr. Justice Mwakasondo, had this to say about Rule 89; “From a proper reading of the above provision it seems to me that for an action of enticement (which in Kiswahili is “Kumshawishi msichana aliye chini ya miaka 21 aliye chini ya ulinzi wa baba yake ahame kwao  na kukaa na mwanaume anayedaiwa,  kinyumba )to succeed the plaintiff has to establish …. The following: (a) that the defendant enticed the girl who is his daughter, (b) that his daughter is or was under the age of 21 and (c) that the daughter was prior to the enticement living with him under custody. I would go further and add that the plaintiff must also show to the satisfaction of the court that the defendant entitled the daughter and took her away to live with him in concubinage (i.e. Kinyumba). In the present case it was found as a fact that the girl Keta was living with one woman called Mage during the time of her disappearance from home. The appellant failed miserably to show that the respondent was keeping Keta as his concubine and in this view I am reinforced with the African custom of bride price. An enticer who took a daughter in concubinage would deprive her father of the brideprice. He would at the same time be unjustly enjoying the girl’s favours and services without paying for them as is ordinarily the case. To my mind, damages would only lie if the seducer enticed a daughter.

Into concubinage and no less. For this reason and without intending any disrespect to my senior colleague, I would accept Mr. Justice Mwakasendo’s interpretation of the law as the more persuasive …. I would therefore hold that no action lies on the grounds as presented by the appellant and dismiss the appeal.” (3) “Not that this would be the only reason for my decision. There is another reason why I would not entertain this appeal. In the case of Kulthum Kara v. Yasin Osman, (1968) H.C.D. n.340, Georges C.J. (as he then was) held: “Under section 57 (1) of the Magistrates Courts Act, proceedings in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof” must ordinarily begin in Primary Courts unless the High Court grants leave for their commencement in some other court.” As I have already said, this claim was preferred under customary law as can be inferred from the Mbeya Resident Magistrate’s ruling. Otherwise the claim has no basis within the received English common law. If Osman’s case is anything to go by, the suit was brought in the wrong Court. The Resident Magistrate had therefore no jurisdiction to try it without authorization by the High Court. In the result, the trial court acted without jurisdiction and the entire proceedings were null and void.” (4) Appeal dismissed with costs.