JUMA MISANYA AND ANOTHER v LISTA NDURUMAI 1983 TLR 245 (HC)

JUMA MISANYA AND ANOTHER v LISTA NDURUMAI 1983 TLR 245 (HC)

Court High Court of Tanzania - Dodoma

Judge D'Souza Ag J

September 7, 1984

CIVIL APPEAL 22 OF 1983

Flynote

Family Law - Damages - Whether special damages and mesne profits may be claimed

for I an adulterous association.

1983 TLR p246

D'SOUZA Ag J

-Headnote

The respondent successfully sued the first appellant in a Primary Court for adulterous

A association with his wife. The appellant paid shs.1,000/= and promised to stop the

relationship. But the relationship continued and the appellant married the second

appellant (respondent's wife) according to Islamic rites. The respondent filed another

B action and claimed Shs. 5,000/= for adultery, Shs. 5,000/= as special damages, costs

of the suit and mesne profits of Shs. 1,000/= per month for adultery from the date of

filing the suit till divorce was granted between the respondent and the second

appellant. In an ex-parte judgment the District Court entered judgment for the

respondent as prayed. The appellants' application to set aside the ex-parte judgment

was refused, and they C appealed against the ruling. One of the grounds of appeal

argued in favour of the appellants was on the merits of the District Court's judgment

allowing all the reliefs as prayed.

Held: (i) Damages for adultery are awarded on the principle that they are to be by

way D of compensation for the husband's loss and injury, and not by way of

punishment of the adulterer for his misconduct;

(ii) where special damages are claimed they must be proved in evidence. In

this case no special damages were proved;

(iii) "mesne profits" are not a head of damages allowed in adultery cases. E

Case Information

Order accordingly.

No case referred to. F

D.C. Mbezi, for the appellants.

[zJDz]Judgment

D'Souza, Ag. J.: This is an appeal arising from Dodoma District Court Civil Case No.

G 58 of 1982. The appellants Juma Misanya and Moleni Masululu were the first and

second defendants respectively in that case. The respondent Lister Ndurumai was the

plaintiff. In the plaint the respondent alleged that he is a teacher resident at Handali

Primary School, Dodoma and that the 1st appellant is a Rural Medical Aid and the

2nd H appellant is a Ward Attendant at Chiboli Dispensary, Dodoma. The

respondent and the 2nd appellant were husband and wife and the 1st appellant

started 'poaching' and on 9.6.82 were caught in flagrante delicto. The 1st appellant

paid compensation of Shs. 1,000/= and undertook to stop his association with the

respondent's wife. However, I instead of desisting the 1st appellant went through a

ceremony of marriage with the 2nd appellant under Islamic

1983 TLR p247

D'SOUZA Ag J

rites and continued to live with and commit adultery with 2nd appellant. In

paragraph 8 A of the plaint the respondent claimed Shs. 5,000/= for "pain of mind,

credit and reputation". In paragraph 10 he put the value of the claim at Shs. 10,000/=.

Finally at the end, the plaint is as follows:

Therefore, the plaintiff prays the Honourable Court to enter judgment and

decree in his favour B as follows:

(a) Shs. 5,000/= for adultery

(b) Shs. 5,000/= for special damage

(c) Costs of the suit C

(d) Mesne profits of Shs. 1,000/= every month for adultery from the date of

filing this suit till divorce is granted between the plaintiff and 2nd defendant.

(e) Any other relief as the honourable court will think fit to make. D

On 20.1.83 both parties appeared before the Senior Resident Magistrate at Dodoma.

The two appellants stated that they had been served with plaint only the previous day

and required time to file their defence to the plaint. They were granted until 10.2.83

to E do so. On 10.2.83 both parties appeared before the court. The appellants stated

that they had not filed their written statement of defence because they had failed to

understand the plaint. They were given time until 23.2.83. The case was fixed for

mention on 24.2.83. On that date the appellants failed to turn up in court or to file a

F defence and the court ordered that the matter proceed ex-parte. On 19.5.83 the

court entered judgment for the plaintiff as prayed on the basis of an affidavit filed by

him and which affidavit was an almost verbatim repetition of the facts alleged in the

plaint.

On 23.9.83 the District Court Dodoma, presided over by one of the resident

magistrates, ruled on the appellants' application to have the ex-parte judgment set

aside. G The court rejected the application because the court was not satisfied that

the applicants had been prevented by illness from attending court. The court noted

the absence of any medical evidence on the issue.

The appellants then appealed to this court. Mr. Mbezi, counsel for the appellants H

attacked the ruling of the District Court refusing to set aside the ex-parte judgment

and he also questioned the merits of the judgment itself. The respondent was served

to appear for the hearing of this appeal but failed to turn up, and the matter

proceeded in his absence.

Mr. Mbezi's main ground for challenging the ruling of the District Court was that the

I court ought to have accepted the affidavits of the applicants/

1983 TLR p248

D'SOUZA Ag J

appellants as the same were unchallenged. The record does not show that the A

respondent was told of his right to file a counter affidavit. It is not possible therefore

to assume that the mere non-challenge of the affidavits amounted to admission of its

contents. This is particularly so because the respondent was not represented by

counsel.

However, this court is of the opinion that whether an affidavit is challenged or not it

is still B the duty of the court to weigh all the circumstances of the case, including

the law on the matter, and to decide whether to allow the application.

Although the court which passed the ex-parte judgment did not say so expressly it is

C clear from the record that the court entered the ex-parte judgment because of the

failure of the defendants to present a written statement of defence under 0.8, r.14 of

the Civil Procedure Code. Where ex-parte judgment is entered for non-appearance

under order 9, r.13, the same provides for application to be made to set aside the exparte

D judgment. However no similar provision exists for setting aside judgments

entered for default of filing a written statement of defence. The chamber application

filed in the District Court does not state under what provision it is made. Under

Order 40, r. 4(1)(b) the aggrieved party may appeal to the High Court against an order

under r. 14 of E Order 8 pronouncing judgment against a party. For this reason this

court finds that the application before the District Court was misconceived. Section

95 of the Civil Procedure Code cannot be invoked to assist because the defendants

were given a specific right of appeal.

The ex-parte judgment was passed on 23.9.83. The appeal to this court was filed on F

23rd November, 1983 well before the time allowed for appeals from decisions of the

District Court made in its original civil jurisdiction. I am also of the opinion that the

fact that the appellant pursued a wrong remedy - i.e. applying to the District Court to

set aside the judgment - did not deprive him or them of their right to appeal against

the G decision of the lower court entering judgment in default of filing a written

statement of defence and against the decision on its merits.

Mr. Mbezi argued that the District Court acted erroneously in entering judgment in

default of filing a written statement of defence. The record shows that the appellants

were granted two extensions for filing their defence but appear to have dragged their

H feet. Their allegations of illness was not supported by medical evidence and as

both of them worked in a hospital this was rather strange.

It is on the merits of the District Court's judgment that Mr. Mbezi for the appellants

stands on better grounds. The plaint included a claim for special damages in the sum

of I Shs. 5,000/= and another head rather amusingly termed "mesne profits" of Shs.

1,000/= per month from date

1983 TLR p249

D'SOUZA Ag J

of filing the suit to such time as divorce is granted. These were in addition to the

general A damages of Shs. 5,000/= claimed. All these were allowed by the court as

prayed. By 27th October, 1983, when the decree holder filed application for

execution, because of the running damages termed "mesne profits", the decretal

amount, excluding costs had reached Shs. 22,000/=. By not filing divorce proceedings

or by delaying the same, B presumably the decree holder could eventually execute

for an enormous amount of money out of all proportion to the wrong suffered by him.

Damages for adultery are awarded on the principle that they are to be by way of

compensation for the husband's loss and injury, and not by way of punishment of the

adulterer for his misconduct. In assessing these damages both the material loss and C

moral loss are taken into account. On the material side the husband could prove for

example the cost of keeping a nanny to look after children left behind by the wife.

The injury to the husband's feelings and family pride and loss of companionship must

be taken into account on the moral side. The material loss, termed special damages,

must D be proved in evidence. The other, or general damages are assessed by the

court considering all the circumstances of the case.

In this case there was no evidence at all to prove special damages. The "mesne

profits" were also unjustified in law and were not a head of damage allowed in

adultery cases. If E anything they were punitive.

The court accordingly allows this appeal to the extent of setting aside the award of

Shs. 5,000/= special damages, and Shs. 1,000/= per month running damages. F

The award of Shs. 5,000/= general damages, which appears reasonable in the

circumstances, is left undisturbed. Each party is to bear his own costs in this appeal as

the appeal was only partly allowed.

G Order accordingly.

1983 TLR p250

A