GAI IPENZULE v SUMI MAGOYE 1983 TLR 289 (HC)

GAI IPENZULE v SUMI MAGOYE 1983 TLR 289 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

May 25, 1985

CIVIL APPEAL 101 OF 1982 B

Flynote

Family Law - Claim of damages for adultery - S. 74(1) of the Law of Marriage Act,

1971.

Family Law - Compensation for adultery - Quantum of damages - Custom of the

community to which the parties belong - S 74(2) of the Law of Marriage Act, 1971. C

Evidence - Proof of adultery - Whether direct evidence is only admissible evidence.

-Headnote

The appellant was successfully sued at Nyambiti Primary Court by the respondent in

a suit for a claim of damages for adultery. The respondent was awarded ten head of

cattle D as damages. The appellant's appeal to the District Court of Kwimba was

unsuccessful, hence this appeal.

Held: (i) It is not the law that direct evidence of persons caught in flagrante delicto is

the only admissible evidence to prove adultery. Very rarely adultery is proved by

direct E evidence; the common practice is that adultery is proved by circumstantial

evidence;

(ii) section 74(2) of the Law of Marriage Act, 1971 provides that in assessing

damages for adultery, the court shall have regard to any relevant custom of the

community to which the parties belong. F

Case Information

Appeal dismissed.

No case referred to. G

[zJDz]Judgment

Mwalusanya, J.: The appellant Gai d/o Ipensule was successfully sued at Nyambiti

Primary Court by the respondent Sumi d/o Magoye in a suit for a claim of damages for

adultery. The respondent was awarded ten head of cattle as damages. The appellant's

appeal to the District Court of Kwimba did not bear fruit and hence this current

appeal. H

The appellant in her memo of appeal has vigorously protested against the decision of

the trial court arguing that it was against the weight of evidence. She said that there

was no direct evidence of adultery adduced except hearsay evidence. She further

boldly asserts I that even the hearsay evidence from the respondent's husband was

admitted to prove the

1983 TLR p290

MUSHI J

plaintiff's case. In short appellant contends that the decision of the trial court was

based A on nebulous inferences if not speculation.

Admittedly the way the suit was proved at the trial was novel and unusual but by no

means despicable. What happened was that the respondent's husband Mafayo s/o

Shimiji was caught in adultery with the appellant. That was when the adulterers

were at B Salawi village for a visit. The appellant's husband Kaswahili s/o Lutoja

sent them to the ten cell leader of Salawi village for redress. The respondent's

husband admitted adultery and was condemned to pay ten heads of cattle which he

agreed to pay. C

When the respondent's husband returned home at Chanela village, his wife got wind

of the embarrassing news. She also went to claim damages at the ten cell leader from

the appellant. Appellant admitted adultery but prayed for the appearance of

respondent's husband at the sitting. The matter was referred to court. At the trial

appellant admitted D adultery but again questioned whether it was proper to be

condemned in the absence of the respondent's husband in court. The trial court held

that it was quite proper to proceed even if respondent's husband was absent.

Like the first appellate court I am unable to accede to the argument of the appellant E

about absence of direct evidence. Whether adultery has been proved is purely a

question of fact. It is not the law as suggested by the appellant that direct evidence of

persons caught in flagrante delicto is the only admissible evidence to prove adultery.

Very rarely is adultery proved by direct evidence; the common practice is that

adultery is F proved by circumstantial evidence. However in this particular case,

appellant herself admitted adultery. Now what more else would you need? In law

nothing more was required to prove the case for the plaintiff. There was no need to

have the respondent's husband called when the appellant admitted the act of

adultery. There can be no doubt therefore that this appeal is devoid of merit. G

As regards quantum of damages I was initially of the view that ten head of cattle was

too much and rather on the high side. I thought it offended s. 74(1) of the Law of

Marriage Act No. 5 of 1971 which prohibits the award of punitive or exemplary

damages. But s. H 74(2) of the same law states that in assessing damages for

adultery, the court shall have regard to any relevant custom of the community to

which the parties belong. In this case both parties are Sukuma by tribe. The trial

court which sat with Sukuma assessors appears to be of the view that ten heads of

cattle is the appropriate quantum of damages I for adultery in this part of the

country. Even respondent's husband was condemned to pay the same amount by the

ten cell leader of Salawi village. So the

1983 TLR p291

figure arrived at appears to be appropriate and in harmony with Sukuma customary

law. A

Be that as it may, I dismiss this appeal with costs.

B Appeal dismissed.

1983 TLR p291

C