Musa v. Hamisi (PC) Civ. App. 2-D-71; 7/9/71; Mnzavas J.

 

Musa v. Hamisi (PC) Civ. App. 2-D-71; 7/9/71; Mnzavas J.

The respondent unsuccessfully sued the appellant in the primary court for compensation for adulatory which he alleged that the appellant committed with his wife Mwavita. He appealed to the district court and was awarded Shs. 20/- as compensation. The respondent alleged in evidence that on December 16, 1969, he found a 10/- currency not with his wife who confessed that the money was given to her by the appellant in consideration of illicit intercourse which he had with her. One Abdullah gave evidence that the appellant gave him the 10/- for Mwavita which he subsequently gave to her. The primary court dismissed the claim on the ground that there was no direct evidence of the adultery. He, in support of his judgment, quoted sections 116 and 117 of Government Notice 279/1963. The learned District Magistrate reversed the decision on the grounds that there was enough circumstantial evidence.

            Held: (1) “The confession by Mwavita is however, strictly speaking, only evidence against he rand not against the appellant. To implicate the appellant with adultery, the wife’s confession has to be corroborated by other independent evidence tending to show that her confession is true.” (2) “There was, in my view, sufficient corroborative evidence in support of the wife’s confession that the appellant had sexual intercourse with

her. There is the Shs. 10/- note……… which note the wife said was given to her by the appellant for her services to him. There is the evidence of Omari Abdullah (P. W. 3) who told the court that he was given Shs. 10/- currency not by the appellant who asked him to take it to her and that he did give the money to her. What is more- I fail to see why Omari Abdullah, who, as the evidence shows, is an uncle of appellant, should have decided to tell lies against him if, the appellant did not, in fact, give him the money with instructions to send it to respondent’s wife.” (3) “The Primary Court Magistrate said in his judgment that there was no direct evidence to show that the appellant had illicit sexual intercourse with respondent’s wife. I agree there was no direct evidence to this effect – but in cases of adultery, it would be too much to expect direct evidence. If the courts had always to look for direct evidence before they found against an alleged adulterer, the result would be that no protection whatsoever would be given to marital rights. In almost all cases, adultery is inferred from the evidence tendered in courts which lead to affair and reasonable inference that adultery has been committed. Cases are very few indeed where the parties are found in the act of adultery. The Primary Court magistrate’s approach, in his judgment, is good but he unfortunately failed to refer to section 119 of Government Notice No. 279/1963, which deals with circumstantial evidence in cases of adultery and hence his erroneous conclusion.” (4) The appeal is dismissed.