19890518 TZHC Dar es Salaam

IN THE HIGH ~ :)URT JF TAI~ZANIA 1 ·• · AT DAR --£S SALAAM PC CIVIL AP-Pl.GAL NO 2 J;F' 1 JC,~ (FRJM TH1 :D.tCIS.IOi OF '.P..:IB J'H:iTRICT ~OU.HT OF 1URO~C-H.J AT IiiOTIUGGRJ I~ CIVIL Mb:iAL 1~0. 37 Ji 1967.) OJl'IGLfAL FRu1V1 CIV CASE 58/87 URl3.A.i.~ COURT CIV APP 37/07 MOR0GORO ~!STRICT OOffRT • .t.N'.:'JNETHA I11;:m{;A •••••••••••• , •• A?PELL.A.NT Vl:;RSUS PHILIPINA .MBWAhlB '• •• , ••••• , •••• .,RES.PJN:,ENT MREl,fA-PRi,i(EXT. JUR.) The r,r•sent appellant, .Antonetha Niwentla has appealed ti, this hurt against the d0cision of the Jistrict Court of l'Lr.)~oro to which the preseJll responde'n-€ lia.J successfully appealed against the deci::;iun of the Moroguro Urban Primary Court whe.rein thd respondent. Ph..!..lipina i1fowambo had filea " suit for dam'a:;es ·against the appellant in res.r30e,:t ::f alleged acts of .~J. adattery committed by the appellant, Ant~netha, ~ith the respondent's husband, one 1/f'Jwam°'.Jo, Philipina (resp:;ndent) ha1 sued f-.)r shs-30!00O/- as damages in respect of the ~llegod acts of aduttery·0ut the rrimary court dismissed the claim. The respondent, ho7ever, successfully app~aled to the Jistrict Court which awarded the respcn~0nt. t~~n appellant, ahs. 25,000/- as damages. The appellant, Antonetha, was dissatiG~iel ~itt the Jecisiqn of the · c.istrict cou:rt and appealed to •this courL 2.ne listoi d0wn three groli.llds of appeal, namely; (1)

Th8t the respondent stated that ;he kn0w tha appellant~s · adulterous association with i~e -~cspond0nt 1 s hus~and !eaoe 7/2/1905, yet the respond.o~:-:: i:.:.K.i.:: n.J steps since then u...til in 1907. Instead 1 tne resp8n~er.t did :~cts which encouraged the existence, or th8 gr~wt1 Jf that r-:a~ionship jetween the present appellant anl t~~ r~spondant 1 s husba3d. (2) (a) That the respon:lent :.::.11 DJ' a:l::luce evidence to,_justify how the appellant could ·:;e .:nLula to pa-y shs.30,000/-. as damages by reason thct tha respondent's hus6an<l who prior to his association w: th the appellant was gtving to the respond~nt shs. 2~0~)0/- p.m. as mantai1,:ance for the matrimonia~ ._rwuso, ;)t:.t rdter the allsged , a~sociation tho am0unt was red.uce::1 tJ shs.1000/- p.m. 2 Th~t the respondent diJ not prove by evidence, or in any other way that the divert~d and given to tho appellant~ (b) Even the. allegad shs. 2,J ;;/-,-there was no evidence addu~ad to ~rove that it was true infact that the respondent was being given this ~oney DY her husoand per month. (c) Also, that it was not provod to show the rear~ndent's husband's mon~hly income for the purpose of comparison to determine whether the husband of the respondent was within the .ma1iu.l5 able to pay shs. 2,:i:n/- monthly to the respondent. 3; That the Learned Principal District Magistrate who ~eard the appeal did not stick to the

evidence tendered at the Court of first instance, that is, Moro 6 oro· Urban Priwary Court. Instead, the Principal District ~agistrate: luring the hearj ng of the appeal, deuianded more ev:.d.en:?e froui the complainant ( now respondent) and raco~ded the s~me. That when cross-examining the appDllar:t~ the Magistrate was not recording the answers ani, instead; he was surpressing her statement. That the appellant was not given sawe or fait opportuni "t1 as -it .was avo.iled to the rospon:lent; instead the Magistrate was rude to the appellant. ~lso that copies of judgment andprocoedin 0 s in the origind case no 50/87 were not readily eivon by tho District Niac:istrate. 1l.s a result ., this failed thB appellant to file prof)T grouds of appeal. I will now deal with the grounds, ono after another. The first ground is that the res~on~ent k~ew that the appellant was sexually cohabiting with tha ro'.-_i_)c .l'::c-rnt I s hu_sband but she took no steps to stop it, inste~d iho ~ncJuiaged such acts. The question for consi1oretion c~~ 1eter~ination is whether this ground ~an ~e answered po~itivelyD We can only find tho answer frow tho evidence t·ndcrod by the parties and their witnesses at the tri.::l ,~ J.r·. •- th0 .1:-'rimary Court. I bavo gone through the proceedincs o; th0 Lower Courts, that is the Morogoro Urban Court, an~ tta ~istrict Court of l\forogoro District. The resL:Jondent

·, s husbac:::. Ste.f)he :Mbwambo·, w}l'o being referred, to throughout t:_e ;.Jvi:ienee a.t the trial , was never called to giva evidencoc N6ither was he called at the District Court when this case wGnt thcire or:. o..p:;;,eal from the primary court in order to clarify certain points in o~der to .. a fair an:-: ju.st decisLH~ ·co the case . . give 3 I saw this probleu when the watter cawe 0ef:irG ,.ie ()n ai.JJ.Jec1.l from the District Court anJ therefore invokad orJer XXXIX r 27 of the Ci~il Procedure Co-:le to Sttiil~Jon Stephene iifbwa;:,::>o; tho reo:)onrlon t I s husband, and one Yusufu Mwakc-nje of police i,Iorogoro. I will now first exa~inG the eviden~e of thG p2rtiea and the witnesses as i~ appeared at the tri~l court. fhilipina Mbwambo, herein_ to be referred to as tho responlent,teutified to tha cifo~t that the ap_:pellant was iranor~lly moving with her :tustand (:re:;pon '•:mt I s husband). This came to tho k:iowledge of thu respondent when she founl her husband. in"fragraht ·. delic-i;o "with the a_µ1>t:illant on ../2/c5 ~ t ::dd night "lhen the respondent returns d fro@ saf &ri. 1.c ~or·:ling to hex- tc, :3ti.:.1on1 ,~s she averred at the priw.ary cou::::t in that nig.ht,she reburneJ. f,.:.,.,, cc..:'i..:.ri and. found the appellant in her r.1atriwonial home slcepi::.g ·.vitl·. i..irn respon,::ent 1 a husband. That tho husband out of guilty con::;cL'us i~·1d to

lcaYe the appellant ~leeping alon~ e~d he had·t? jnin har wife (rcs~on~Jnt) on another bed but in the same r0oc. They all slept L1 thG sai;ie roo.:;1 ,,(ltil the following -- . the ro~,~ ,~i~nt s husband, in t-e morning. That faE if that was not onoil~h- 1 morning h<JurJ9/~/G5) called the ap:;:;ollant ani L:+.1 :)duced her in the following wor:::s: nhuyu ni dada yako na y0ye ni r.:c1. _ gJ wako" - Meaning, the respondent is the senior wife and tha a~~-llant js the junior wife. This stateu1ent, 'lCcording t::i the respond.e:it, .~:·.::· .g-~ l her there bi· causing the respondent t..::i lec:.tve the ,.w trL10niul hc:Jo on tl G same day. Al though at the pri~ary court the respondent did not indi~~te as to where she went, she told this court when arguing this ci.pi1;1a.~ that she went to her .. :;, parents for guidance OJ:'- wh&'i; she should d.o with I ,eard to the her husb~·a·, s conduct. It was also tho respond8nt·s avidence ·tt the trial court that she was advise·:1. by her parents t) co;,;e back to tl::~l matrif:'.Jonial home to seek econciliation through th0 parish council (tho_~·Espond.ent and her husband Mbwa.nbo are let;ally wife anJ. husband, res_;,ectivJJ.y, under Christian rite). This, she did c..nd · both husban:i and wife ai)peurei :.ief)re iJhe parish oouneil on 7/4/05. Thin avidence by tho respondent is affirmati~ely coqfirmed by the evidence o:f Maro Blasins

(.P7fI), Tho respoY1dent 1:1nd her husband were ' reconciled and. kbwalilbo }ruwise0:_ that he wou: · 1.ot associute with his concubi'ne (the appellant) any wore. It was also stated &t the priuary Court that before the uattt-r vms re::'erred to the Chur.:h t:.s respondent had also complained agai: st the immo~al conduct of her hua~an:i to her husband's · relatives and t!.c respon•i'.)flt and. her husband. we::-:; ref)Jnciled and. i1fowa1:1bo promised that h-J would not associate ~ith hie c,ncubine (the appellant) any mo~~, It was also statud at the pri □ ary court that before the watter was referred to the ch 11.rch the 1·es1)on2ent ha1 also cor,1plained against the immoral conduct of he= husband to her tusbind 1 e relatives and the respondent's evidence was su_.)port,, :1 by the m,cle of her b.m;band; ,;J.~liara .imdrea (PW2). It. • •·I 4- 4 His evi1ence was to the effect that the main quarrel between the respondent and hell husband, Mbwambo, was nothing but 1.l;;;cause Mbwawbo had proved t.o .the respondent to je keeping a concubine, the ap~ellant. 4Coording to. Andrea, he tried to reconcile the J.isputu but in vuin. It was also stated,. by Maro (?WI) that after the first i.'.laetinis -.'ii th the parties the respondent'• on another occa;;;ion went back t;:- roport that her husr.ia.nd had resuraecl f- 9 1:. · ad~lterous association with the ap~cllant. rlgain, tho parish

council reso~ted to ·summon the parents of the oarried cou,?le but tney never appeared,· eTen until when .i?WI was testifying be.fore the :i}riwur.Y c.:iurt on 2/9/07. When both the. ao~ellants an~ t~0 ra~~ondonts were arguing the appeal ·- her befo:,e ce, the resJoudent re-counted how.lhusnetn.J continued to iwraore.lly cohabit with the &ppellant and this worsened the relationship-between the respondent and her husband on the one part, and the r01pon1ent and the appellant on the other. It is to be noted fro@ tho rec0r~ that aftGr ~he incident of 7/2/c5 the appellant got a room near tho house of the respondent and she moYed. to li~e therein. I~ would appear that the respondent 1 e children started to visit the appellant. On ::6/5/05 one of the respondent I s chi~.d went to the appellant I s house with the rcs;,ondent's knowledge. Wher. the res-;:iJnd.ont after a searoh learnt that her ch:.ld was in the aiJ}Jellant 1 s house~ w:i.s grossly embfttered. She wi...rnec: the oliild not to go the appGllc.nt I s ho1.: Je again. This, in turn, enraged the respon". ent I s husband, ·an~ as a result, 'JI'. 2.7/5/J5 her ~us band beat up the ·respondent for ~er having c~llecte~ the chill from the res~onden~•s house and also refusing l1im to go to th~ afp~llant ~g~in. 1he r9p9~ndent referred the matter to th~ respondeni 1 s ~usband 1 s tincle· (PW2) - 2t tha r~imary Couri. A more se~ious

quarrel ensued on.5/1/06. 1his ti~o~ ii ~as~ flat iron -a domestic applicance for pl"e ssing clothos, disappeere·d fro;;i t'ic re s 1rnndent I s ma tri'monial house. In the course of ·a search it wo.r.i cliscov,:.l'c:<'. -:hc.t it was in -bhe appellant'" home. According to the responderit, luring tho h~~r: 1g Jf this appeal, she eald that it was returned to her house by oni·a~pellaDt 1 co-toDant. The iespondent ordered that persJn to return it to the a;Jellnnt ~ J shJal1 explain to the respondent as ho½_the article got out of her h0~~0. WhGn tho respondent 1 c husband learnt oi this inci:'lent 1 and 1:.:lso .:.:~1 tne ::·e _cti..m .J:f the respondent, the respondent hes stated iri this court that she ·;9· ceat~~ u~ by ~er husband and this time sh,' v;as cou1pelle 'l t·o re for t-,~, ·< t~ tho police. As I have stated above, when thi~ appeal c~J! of~ro cie I was forced ~o invoke order XXX:.X rule 27 of the C"P.C. on ·rc&.lj ;;_ng tno.t the proceeding~ were not properly conducted or dealt ~ith. ~s I ,.o .. c, the trial magistrate errered in not ~ppreciating the fact th~t he cu~;t to ~ave heard the full sitory of the rospo:.1dent I s watrioonial Jis,;mtE'. · o:: ··o~~e he 01aburked himself on the tlssue bet" 0en the ::::-esponJent and the a:;iJell~~ut - v:1ich was whether it was true 1 infact that the rESJondent (appellant) live:!. in a(.ulterous association/cohabita- tion with

the reni;:Jndent 1 s husb::J.nd. wher: th0 a.;~cl.Lmt kr,0v1 thut -:ihe Clan was the rcs,c:>0ndent. 1 s hu~,ounci~ For e~au_Jle tt.e pr'i"'ia:r·_r c.:mrt wc:.gistrate did not consider it an L1)ortant fa ·lt tl1t. t tu~ r0 :,.l:'0n,.:.a1: t I s bus ....,uncl who was i,ientioned fi ..; · ,., ·• monthly 5 The ~rifilary C0urt Jid not even r0fer to tha evidence 0f the res~ondent a~ to the stepH she hctd tctken, for exuw~le the r~feronc8 of her complaint to her parents, rQl~tives of the resJonJent 1 s husuand and to the respondent's parish Council. It would also appeur,-a~ I did ob&erve during the hearing of this a~peal, that the Prifilary Court did not hear the respon,Jnt 1 s case in full. Had it done so this cJurt would not have the problem of requiring additional evi:lence in or·.:.er to resolve all the issues ~urrounding the case & For exa,:i;,le, Insp, Yusufu of .t>olir,a Station would not have been require•l by this c::mrt t~ give evidence; had the primary· court of MoroJc.:o urban baen judici~lly patiant to hoar the respondent•~ · found · matrimonial conflict as ·oet,rnen 7/2/:;5 'iilwn the a~-:pcllant wa~ ~n f),.a4i'rente d,e-licto by the respondent and 3rd of i-J.u 6 ust 1 ·j 9~j7 whe~ the responden'f; filed the aui t for dau1ages against the a_di)el::.an·0 at tha pri □ a.ry c.ourt this appeal . . would not have been filed to this court, µavinG 1;aid this in ~assing, I will

now go tack to the evidence on reoord to find out the answer for tssue number 1. When In~:pector Yusufu, herein after ,refern:,d to as C.W .. I, was called for examinat:con relating to what th0 resJondant claiwod to the court, his evidence i• sub111tance is to the effect on 1 )/1j:.6 Sgt Mudolv:a forwarded a police case file to him. I~- was a uo~plaint tho rosJondcnt against hei husband who all~gedly assaulted her. That the Jo~plainant (respondent, told him (C.W,1) that although her husband h,10 assaulted her siraply because

WQS L she against her husband living with concuL1n0 ~a)~ellant), she waa not interested to pursue the case furth0r r,r::ivic'_e . . that the police assisted her to re~ove the concubine fr0Q 1 the uoiLhb::iu~h0oi ~f thu res~ondent 1 s . matrimonial house• o. w. ·1 orclere;:!. sj,t, _;,:n-iolw[ to SUul:JOn the respondent t S h~sband to his office, The raspo~ent 1 s husb~nd ~!~!ttcf that he had a / / concubine (appellant) near the J;at:ri..;on:.::J.l h Do.'. lr:c,;;, Yusufu observed that this kin:1 of conduct was not. go.Jd. a;;; it c-.··,;l , :'.-JaJ th0 aggrieved part to coU1mi t no·:· only an unlawful ·.)fi'enc,:, 1 ·:y1;.t . € :i:)Y"Lls one indeed. So, ·C • VI .1 dtrectecl the respondent 1 s husb.<cncl; h:o..c•.i. ,d;, :::· r·r:f(➔ rrdd. to as c.w.2, to· remove hi:J concubine· (a.i:Jpellant) f'r'.):il t.oG 1c: :::.~·~i 1ri1ood of the re1'ponclent ts home and she (appellant) coulJ rent~ b~~ra Q:3owhera ani not hear the respond0nt 1 s ;.;.1atrii.1onial ho,.1e,.- .Acco:.·(~.:.; .:, C.\~•'1, iVL:n,a;.;.1bo (CeW2) confirmed to hii:1 on ·: 3/1/06 that he lic.:.i W.JYGJ thG ·;r ]U-:.::i.n0 away fr-::iGt the @atrimoniai h:Jwe. It Vias not the end of quarrel ·ootv;,.~jn the r:;,:.,_:i:::mdent and her husband, again ~he _;:~::oblefil was the ·.toncubine .-. I·t i:, tho s-'jory by· h•th the appellant a~d the res.,:ionJent that on 2j/6/:.7 the F:)} )llant happene:l to have visited the

matri~jnial home of the resJondent. r~e wan (c.w2) was sick, he had !r.actured his _leg. So the :1p_pellant wen-, Lhere to greet and wish h1.m good recovery .. lJ.Ccordinc to the. a_;,_iJoll::::.Dt :, ste ato. tod. that on the same dar when she reE...ch0d h0r f,li:!08 :.:,f w·.n.·i-: ,;:a, ran 0 , ,<. one of +i-i.i:J ros)onJ.ent I s work- mates~ IncidentaJly~ hYnevc:r, "lit;'.: r~,.,.,H,>nt V/_;,S 1:1:::·:.I'l on thc;i telephone usir J •. 6 Do not come to my home, or else I will knife youul The appellant then reported the matter to the respondent's neighbours who in turn inforraed the respondent's husband. The neighbours were requested ~o bring the ~ppellant to the respondent's husband. Thu appellant thew narrated ~he telef)hone incident to Mbwa11bo (c.w2). C.;i.2 followed thu respondent in her room leaving tho appellant in the outside verrandaha of that house. Suddenly, acco~ding to tho appellant, th8 respondent caLlo outside ~houting and was saying 11 kama unGekuwa :;iwana ;·awe 1,rnenye busara unge-1:.ukutanisha na ku~uuli2a." That Mbwar.ibo re.k)liod thu t he coull not ·lo that since the respondent was threatening to assault the appellant with a ~nife. The appellant further said that the respondent continued to shout using insulting wo~ds and her husband was annoyed and got hall of her and brought her inside·~ Than the respondent rushed to the police. although the appellan~

did not say that the :respondent was assaulteJ by her husband, the resp-onlent 1 s · story is that sh;; was cruely beaten up by her husba'1d. and tha-tt i~ why she 00k up the matter to the police. Mbwambo (c.w.1) W:tG arrested. Lai7er Mbwambo and the appellant appeared before the urban primary court. As the respondent did not wish to pursue the assault case with her hu~bandt ·she decided to w~thdraw that cri~inal charge. This tiLle ~ha respondent was well advised. She was told that she could sue the aJpell~nt for· compen~a~ion against her coD~itting adultoly with the responJeLt's husband. The re~pondent then filed a suit: PC Civil Case No. 50/27 which is nov1 the subject of this appeal. The respondent replied to the appellant 1 s cl~iw, why she took no steps against the appellant sinna 19J5 until 19J7 w~eu :he filed the sui~, to the effect thL.t she did ::wt do 30 7 as she believt.:!J. tl .::t the ras1Jondent's husband had left har. That her husband ha1 told the rcspc~lant that although he -ould be seen talking with the appellant he ha1 ccLsed com@itting adultery with t~e appellant. In other words she bud na cv~dence that the appellant1 and the responient were Qeeting for any act of s.c~al intercourse. It may be noted in this judgi.wnt that before the r" ." )n .ont kn8w that the appellant and the respond.Emt I s husband wero sexually co~a.buti:1g, the appellant conceived a

child as a result of the said aiul tery, The' respondent realising that the appellant was preguant could not do a1t.V thing but her wain concern was to stop any further acts of adultery betweer the a.i:J,t>illant anG. the respondent's .husuand. As for the reason why she (res.i,;onJ.ent) had. supplied napkins and other infant materials to the ap;ellunt when she delivered, the respondent stated that she did that through her husband who had requested his wife to do that because the child should 1st be ~ade an issue to· the conflict between the responJent and. J,ha api,cllLJ.nt. The respondent further claimed that as he still loved her husband sh•J saw no reason why sh~ $hould met be sympathetic t8 the child as well &nl not to t~o n)~ellant. The i appellant had further allee;al that the :::es,,)c1dcsl-:.: we,,: c,:i--operating with the appellant &~d aor:ietiL:Jes she used t_ :'..nv:_tE:_; .t:.;~~ tot,•; r.10.J-rL1onial home. The appellant gave one incident when she ~as invitel to the res~ondent's hoJ..Ue to cele·urate .C:ster fest~als together· v7i th her inf act child~ In answer to this the respondent contends not invite the appellant to her howe. It was the resF 1d who haa besieged 'the respondent to allow the infact chil 1 the respondent's children to enjo~ the Bster Sunday to€ 1g_to the respondent, to her feeling was that asLthe child, no shared , '.·. blood relation with her

own childrin Jt woul to refuse the child .join1Gg the others. That if the appel iontinG the respondent's home, she was doing so when the resJo ~tephene Victor ~bwallibo (c.w.2), 1 s husband, but now a divorcee; denied any knoweldge that th rnr complain'od that he was conmi ttin~ adultery with the ap the fu&triwaniai oom~laint to the Chutch was not referred by tha by hiLlself on the ground that the respondant had· deserte ind went to live with her parents. He is aliar. Thero was no at the primary court. The evidence of PWI (Maro) was unequj,r inged. It was the respondent who complained to the Churc ,t Mbwai:ibo. Mbwambo (~.W2) also de~ied ever assaulting his wife for .·eason that she cowplained· that Mbwambo was c<;Hnmi tting adultery with th0 a~ ',"'llla11t • .He is also no-. 0 telling the truth because there is evidenc8 by tha ~olice witness (n.w.1). He has admitted that police arrested him Hhen t.1:'.s case was bro•ght to court. If he did not assault his wife, why was he arr-.::s-:;.;;:l then? .tiowev0r 1 thi6 is riot the issue in this case. C~Wn2 further stat0d tLat he never nonvin~ad the respondent tb take napkins to the appellan~ Hien she ad~ittod in ~ hospital for delivery._ That the ranpondent did that becauce of the r0lation- ship of a co-wife-between the respondent and thc-: a~1)1..dlant. In r;;y view, this witness can s;i,y anyt~ing now because the· rnarriare between

Mhwambo and the respondent, Piiliphina was found by the distric~ court irreparably broken down and a de,ree of divorce was granted. IT~~ evidence now, wh~re ihe interests of the two ladies ar8 concerned, in ra, · o:pini.m, would always be inclined to support. the interest of his con0ubina, the appellant who atill living with Muwa1.,1bo. He even denied that ha WiiS giving shs. 2sOJO/- to the respondent per Llonth for the ~antainancl of t~e ~atrimonial house. Nor was he giving shs. 1, ..:,.:,._,;j- when he sk,rted his r0la tionshi_p with his con.oti.l>ine, tLe appellant~ His salary, accordint. to hh1 9 was shs.1 _,';".15/- in 1985 al thcugh sometimes he su_p:plo ..1entod it · ·i th c--·erthw allowances. I When this witness was re-exa □ ined by the Cou".'t whether the appellant knew that he was oar~ied to the respondent, his answer was to the effect that the appellarit did not know ~hat he (~bw~LJo) was married until the ros.t")ondent cau3ht tho appellant in the 1.:a tri1;i;:,;1ial house wnen she returned from her paronts in 19c5. This ~iace ~f ~viios~cclea~ft ~Jybody 1 s doubt as when the Bi).iJella:n t came to kriow tl,a t 4,.li',.:r·· r-r -nl&:':)illG l,ibwa1.. bo Y/8.S iJc:rried ■ C When tho appellant gave evidenbe at the Prinary ~ourt she had testified that Mbwambo, when he wont to ask for ~artiag3 fro~ her parents he.had assured tho appellant thbt he was marriJd but had

divorced. Now, having analysed the facts of th8 casa such as I have att~upted to do, the basic question that euorges is wh~ttor froLl the facts of the oase it cari be answered either in the affir □ ativo, or negative that the respondent:- (1) knew of the appellants' adulterous assoajation but took~~ steps frofil the date this ca~o to hor kno,.ledgo to the date she filed the suit Le. l>etweon.7/2/c.5 2.nd 3/~i/~'7, (2)en-,ou:raged such aJ.ulterous i..eSS:.iC:i.citivn i..1, t~7EiGn her husti~nd and the appellant. primary court judged that the respondent cc11a0ncd. to the adul terY encouraged it thereby making the ro~at:~nchi_,s between the appellant the rosponderit grew str::mger and s·~rCW;!:JI. r_hf t she could no longer that now., The District Courtv howGv0r, was ):iJ_9osed to that decision t found that there was suff·icient :::vid0.nce }:•roving that the present ilant had delibercitely cobµi ttod 'ad.ul t,JTy vii th tho respondent •s ind. The ~ecision of that court is con~ain~d in a pass~ga of its ~ent which I hereunder extract only tha relevant ~ortion for ease of :-ence ,- "Katika ushahidi wake i11daiwa uliseu.ia kuv1a. wke wu iii:dai aliLljulisha kuwa hakuwa na ~ke, □ aena okewe alikuwa aoetmalliha. Hapo u.:wezekano wa kufan,Ja ilchunguzi ulikuwapo na kupata ukweli, ilibidi a:nuulizo hnyo bwana iwapo kweli .. ameachana na huyo uke s je karaa· a,:.o;;rp,~ talaka lakini yote

hayo hakuyafanya. Alipokuwa·akijibu hoja hizo ~bele yangu Mdaiwa aliseua kuvm r.1bali na kuelezwa na rame wa Mdai kuwa hakuwa na· inke alikuja baadaye kugundua kuwa h_uyu ilLwo alikuwa na mke, lakini haya aliyajua wazi wazi lakin~ ilibidi aendelee na iilapenzi paooja na uzinzi na huyu ,..:.ULL wa Mdai. Kwa hali hiyo U,i)O ushahidi wa kutosha ttnaoonyesha i.-CUWa Mda.i alijua sababu za kufanya zinaa hiyo i.,a;cusudi • .:.-lu'-', wtuto waliyowzaa tunai ta kuwa kazaliwa nje ya ndoa. liivyo fungu 72(2) la sheria Ya Ndoa lisingeli ·_•1sika ku tupilia mbal i r.1adai hay a pasipo mashaka yoyote. Hivyo naaraua kuwa ushahidi. 7,a kutosha kuthibitisha kuwa Mdai ni .wgoni, anastahili kualipa fidia Mdai •• ~··••·•••" I am in agreewent with the decision of the le~rned Prihcipal District Magistrate. The only aspect the Learned Principal District Magistrate did not consider was the a~pellant 1 s allegat,j_on that the respondent eondoned to the adultery bDd thHt she did ~cts which promoted the i 0 ,lutig,1} between the res.J:!onden-1-. and the u.J;,i?G1lant t;.> ap.f:Jeur c:1.s if bo~h li vedLco-wi ves. This is the wain issue on this a;;,j,3:.11. I will now deal with it. 9 Fro;ll the evidence on record - ~ shown at th•~ 1J2ginnihg of this j•dgment, there is no where it ii shown th~t tho res~ondent noted that her husband was co.;J.,1i tting adultery with the &:)pellant and she took no action

ti, ~top it.· The res:pondent at the prh,ary court a.nJ in this COfril very clearly showed what requisite stu~s she took to stoJ the adulterous associatiori of her husband with the o}~ellant, ~ne of th9s~ ste~s was referrence of her cowplaint to her parents Hho &dvis~d her to infor~ the chureb leaders. This was done and tha P:i.rish C:)Uncil :;f St. Pa trick ~hllrch intervened• This is the evidence of Jlasin Maro (PWI). The respondent's _htisband pro~ised the Council that he would stop associating with his concubine, the appellant, The respondent, ap she stated in thig, 11ourt when the grounds of appeal, believed th1:,:'./ her husband was no lunger dulty with the appellant. tlowev~r ~he notetl that the appellant sions was conversing with tho res~ondent's husband. She was his and asked her husband why sh . mld. be taH: with the B.f!pellant. as that he was only ~1fng to her 6n hu.;:L.ni tarion ground·s as the d conceived a childLthe husband.. Th~t the husband assured. her that Qore "uxual intercourse between him and tha appellant. The as it v10uld appear, was not satisfied t,, 1.ave the appellant tin the adjacent building of tho rGs~0~dent 1 s house as tha, co•ld espoadent 1 s husband to revive any relati~nship that could have twee• the ap~ellant and the rGs~ondont. The respondent further this court what steps she had taken to ~ake sure that the appellan.~ n homely courtesy in

the matri~onial hoL~ of t~e respondent. ·She ' . children going to the appollant 1 s hJu~e ~~rticularly when ahe was the respondent's. This led to a tr&v,l b tw0011 the res.i)ondent and There was als·o a dispute of a fL: t -· i.:on which was taken from .. the howo without her knmwleci~e to tho u~J~~l~ut 1 s ho~se. When this the respondent a quarrel was ~reci~ita·81 ·~0tween the respondent and because the respondent want0j thJ e.~sll~nt to be su~raoned ~w the article found tts was tJ t,)J ~J1Jll~nt'~ home. There was _____ incident vrhich clearly sh,:nvo::i ti1.s.t thE: r.:.:si:-'o,.1J.,:m-. did not wan.ti th~ appellant to step her foot at the oatriLJ~i~l hJr~. This wac on 23/6/07 when the appellant vient to greet tho r,::s~:.ond.ent I s · us::iai,d rJ.s he haJ. f.l"actured his leg, The res)ondent was ~nnoyed to see the~,; _1~1:t at her (respondent's) house. This presence of the appella~t in the; r,;'.:_.Jc,l,,n t I s ho □e fermeniJ;,d a quarJel be,ween the responJent and her husband rit~ tta result the the '/ respondent was assaulted und she referrad tLG ~~t•,Jr to the police; Through this incident the respondent was ~dvised to fil0 ,_ suit against the a~pellant for compensation for adultery by the appellnnt with tho ras)ondent 1 s husband. It is therefore ~~ear fro~ tha evidence t~ut the resvonlent never condoned to the alleged adultery. She had taken all tho necessc.ry

ste~s as shown above and in the finality she filed this sujt ~!ion it l JcaJe aiJarent that it was the appellant nho ~as lhriL~ the reSfJD-:•at'J ~a,~~!1tl fr;J the matriwoni~l howe, 1J Fo~. example on 23/6/07 when the respondent 'reJorted .to the police,. the •ause of the· whole trouble was the a.Jl-'ellnnt. It is the ap_pellant 1 s own state~ent to this Court that on that day (25/6/07) she rang to the : respondent's place of work. Although Iha ~lai~ed that she wanted to ~- talk to one ewployee th~re other thdn th0 res~ondent, but that s~e uet the res~undent on the tele~hone, this, Id~ not agred. There w~s no evidenog to support this. I think, and I believe, that the appellant wanted to provoke the respondent, who indeed was provoked. The appellant did not end up the matter there. She want to the respondent's ~atri □ onial home to curaplain to her~onoubine, Mbwawbo. The lettar dii not want to seek the truth, instead, he assaulted the respondent. All thase acts tend to show that the appellant was finding for any possible excuse to replace the re~pondent in the □ atri~onial howe and indoed she sucnJeded because when Mbwambo and the a~pellant were taken to court for criwinal assault against the respon49ent Mowawbo declared baf0re u iJriuary C:::urt Magistrate that the af~Ollant was t~e legal second wife of hi~. This l.lJ to the filing of divor~e proceedings by the res~ondent and

divorce ~as readily granted. Agairt, as tho Principal District Magistrate stated in his judg□ ent, the appellant deliberately associated with the reE~Ondent 1 s husband when was she very well knew that sheLclealing with s•:)CGbodJ 1 s husband. ~lbwar:ibo(C,W.2) admitted before this Court that he inforned thD a~?ellant that he was married to the respondent when the latter f~und t:1~ aJpcllant in the ~atri~onial ho~e on 7/2/u5. The ap~ellant should ~ave stopped dealing with t_he husband o-C tho res1Jon<lent froL1 7/2/:.:,5. :Jut f'..1e stcalthly continued to sexually cohabit with the husband of thu re~jondcnt aL~ tho evidunce that ca~e t~ light was the a~pellant 1 s chilJ oor~ outsida respontlent 1 s husband I s weclloclS. The res_JonJ.ent guve i:. rcc..:suna :,:"'~.r ~cce_ptuble explanation . ·- . 1 • as why she provided soft-war•::s fur th-::concuoino · ·"'chilJ • .dS a nurse, and owing to her obligation as a wife t~ hJr husband: tjo rasJondent stated she saw no connexion as between the child inl hr~grievanc~sagainst tha appellant•-likc the Learned Principal ~iutr~ct McJictr~tu I aw satisfied that the respondent ~roved her case Jn th0 :·repcnlcrJn a of probabilities, that is on the reasonable acceptanc~ of ev~::nce ctc1 ac-ordingly the appellant 1 q first 5round has totally fcil. :. Before I tackle the 2nd grountl of &~)0-l; dispose of the 3rd ground first. On thi3 er~~~t ~f

ap)eal the appellant clai'u1s that the Learned Principal District 1.lf,. ~j st:r:1 te who heard the appeal did not stick to the eviJence ten~0rai Qt the c~urt of first instance. Instead, he deuanded wore evidanc0 frJ~ tno c~uplainant and recordad ~he sal:le • I have :read the :i)roceeclin,:;s of that c ·)urt . . It was the respo~d.ent who appealed. \i'hat she stated ta the. t c::>urt 71£S not ad'.'ti tional evidence but her submission to support hor groun1s ~f e,poal~ Tho appellant in this appeal has not referred to this court 11 wha t ?.i.:1.i t:. ·:nal evidence w2.s heard and recorded by the District c~urt M~:iGtr~t~ '' St0 h~n not also mentioned on·this grounJ cf al:'.Jeal in t1hat :PortL"Y\ :.f t:11°, l,f'• .. · 'Prinei;?al i:if.!eistrate'~ 11 -. The res;ondent - now~ ap~ellant - was &llowe~ by District •asistrste to rely on what the appell~nt - now res~on1ent - suboitted to that Court. -The t'::>fiPfi_2le oft Na;ture.l .ius tice · t;as n.6t "thefefcii-e offen~eti ~ r 11' the pr&tHDl appe a•~ "as no given copies Lo~ judgwent and proceedings in that appeal, then I won1ar how she was able~ to file her oe □ oranduw of appeul. If there wure no such docuLlents, how ~ould the High Court have alloweJ. the 0)0ninc an:1 filing of this a:ppeal? lroQ ~he originai judg~ent of the District Court juJ~~ent by the District Court ~as -given on 14/1J/G7 and its tyJed copy certified on

23/11/07 and the ~~morandum of appeal received by the iiigh Uourt in December, 1907. I do not see where the Learned Princi,1,al 11'°11:,.gistr,,te faul teJ.. But in anJ{ event, however, the delay; if any, to receive co,t1ies ·o:f ,iuJ.g ..ient and 1jroceedings would hot affect the root cause and real issues to th~ case. This ground, I afil sorry to saY so, th&t it is suporflous :,rnj for the same reason it ,is I struck ·,out. The last ground of appeal, which is nuLlber 2 on the appellant's ~eoo~andu- m of appeal, is· on the issue of quartuw. of da1,iagG:,, or eoa1ent&.:Yi~-!l t~ioh ~he Lec:.rned District Magistrate ought to hLde consi:lered 'i-euso·nable and just to 'Fhe cic-cumstances of the case. Although tLe o.ppellant has listed iteme (a},(b)~i6), they are one and the seme issue and I will di~e~s~ them generally • .llt the Primary.. Court, the respondent had a5ked for sh~-. 30,0JJ/-. The claim was dismissed. On appeal to the District C6urt, the Princi_t>al Diswict I~lagistrb te allowed COfil,l)ensation for shs. 25, J00/-. The appellant contenls in her memor~nduw of a~pa~l that the res~ondent did not adduie evidence to justify how the apJellant could bo filele to pay shs~30000/- •; (may be the appellant meant shs. 25,0J;/- us oric:::--ed by the J)istri$t Cou:rf} as compensation - by reason that tho rosponient 1 s husband who ~rior to the association with the appellant was

giving to tha ~os,onient shs.2,0JO/- p.m • .1 · as manta.inance I then after the 1:.ssociation therew_ th the respondent I s hu8band · -educed that amount to shs 1,J~J/-o ~ccording tc thd n;pellant, the · respondent never adduce1 any evidence to show raow sl:te 'ti.1~0 by_ the satiG. The first appellate court found as a fact thut th~re wu3 no 5uch evidence but the Learned Principal District Ma3istrute ~8n~ on &nd contluded as follows:- •••••..••• Mdai hakutoa maelozo ~i ~ipi ~lip~a fi1ia ya kiasi hicho ha ta. hi vyo ki ten do cha Md.ai W.J. ,.11J:_ ·:c:.o amekifunga makusudi anastahili kutozwa fidia arJbe.;yo kwakc1 1:;in li b.kiwa fune.isho. Hivyo 1naamu.ru □ dniwa alipe shs 25 ,-'JD/- f:i.dLt kwa mclai kwa ajili Yi:i. ugoni, na ghara□ a zote za kesi••············••··••=·•~·••••• •••••••••••••••••••••••••••••••••• l<I . . . . . . . . . . . . . . . . . . . . . . . . . . . ,, . I have no particular reason to _disagreu ~ith t4e ap~ellant, neither the Principal District Magistrate, that the rospo11ient did not adduce evidence in support of her assertion that before tho uiscovery of the adultorouc , association of the appellant and the res~ondent 1 s husband she was being given shs. 2,JJJ/-, after the discovory s4a was getting rhs. 1,JJJ/- froc the husband. However, what I ,10 not afT00 is t 11,, f'J"O....- :=.:· ~:i.,.' cv the .Princi,.Jal 1Jis tri c. +- + 12 This is not the

correct proposition in Lc:,.w becc.1.use dai.iti 6 es for adultery are not awarded as pnni~i7e measures. ; The point now is whether tho aGount of shs 25,11J/- awarded to 'ihe respondent as against the a1-1pellant \'ias adequ'.ltc.: in the circu~ances of the case. I have read two cases bJ this court, Jno by Samattu, l. and another by Mairia~J .• I will start v-ri th tho first or:0 - il.NJEL0 KciiiZALI vs. ALOIS M; CHALAMILi (1900) TLR page C3- Here +he appellant who was working as e lead.ar was transferred f:·.,;;1 his workin~ station., He left behind h·is wife and children~ While ·be was away his wife commit-Jid adultery and gave birth to a child A The a1;;>ellant .:i::: ',weredL adulterer after 10 year~ during which period he continue1 tJ ~ive with his wife and fdhered tht chjld. The ap~ellant de~anJoi adulterer wko a~raed t~ pay. He did not payl so th0 uppellant sued him in the primary court, this tirao for a clair;1 of shs. 5; 1G.J/-. The respondent was only against the quantura of darnagos clah1od '.!:he :Primary Cour"b Magistrate with. the aid of assessors awarde:: sh.3. 3,5'.JO/-~ Although the case went on ~~peal up to tne Rig~ eourt o:: diffe~ont • • · T• "I • issues, the High Court did not disturb the awarJ grantG<l by ·che :1rir.1ar.v C,...,,-:.-t. In the second 0ase ty the Hich Court sitting at D0d0Lla: yiz 7 1IELIESTING KICALA AND HALIMA Yr.SUFU vs. RIBSTITUT;i

CEJ3STIN!. KII.jLA (1901) TLR, page 76. ~twas h~ld !.n this case that in assessing qu.1~tu~ of damages for adultery there is a need to differentiate technical. a~:- t:' ter,y f!'vlil Qdul tery by ·people .who have gon0 through any forw 0f warriaee. '.i:'h,_ (;lai41 for dai..1ages was €or shs. 2J,JJJ/- which the District Court rnd1ced to shs .. G,OJO/-. When the matter went ot appeal, the Learned Judge, ~aina, observed ~hat the adultery betv-een the ap:pellant.s was a technicLl one. His reasons were that the first appellant believed that by charging his religion, that would oonvert his monogawons ~arriagc to a polygamous marriage~o That he went ahead and married the oecond appellen~ believing he was entitled to do that by si □ply cha~ging his religion fr::,m a 'faristian to a Moe.lem. The.Learned Judge continued to say:- As I have tried to ~nalyse the cattar, the first appellant v,as acting under an erroneous belief that by :becoliling a Muslem, Jd.8 L1arriage with the responc.ent bL:8c:1r.1e apelygamous uarriage. By going through the i.1arriage with the seco.nd appellant and ., .:iving with her, the first appellant was technically com□itting ··-ad:il tcry with the second appellant. But in my openion, this is different from adultery by people who have not gone through BLY form of marriage. It is ior ~I.is reason I consider shs.OOJO/- e~ryessive and reduce it to shs. 2;0JJ/-

only. Fro~ the la~ter case cited a1ove, it would eppeur that if it were not for the te•:ihnical adu~.tery as observed 0s the· LeG.rnad Judge he would not have i:r.terfcrred ;,,ith ·the aw::!r1 c:i' shs-C::<:</- ar., d.ai'Jages for adultery. The B,tl.J?ell2.n-':; in th_e inst;:;;_nt C«"l :~;;:; .... c,...:.·i..itj u.c __ rHl sne ve::y well knew '·1,,-,- 13 The respondent and her husband were uniou tedly ~arriei in a Roman Catholic Church in-Arusha. Their Marriuee ~~s therefore completely monogamous. Their case was coopletel;y different frpu Oeles!ina Kilala' l case ( supra) and the.ref ore there was n:J tc -:>hinical adultery suoh as it was in that case. Both cases wer~ adjudged about 9 years ag0 when the value of the T.Shillings was 100% or more higher than it is today. A two thousand shillirig award for da □ ages against an adulter~ awaried in 190J, if that is i:iuttiplied by 10;)% depriciation of the va~ue of Tanzania shilling today it means that the claifil today would have boen ...shs. 20,:noL-. If the claim &~day it is mz,r view -that in ANGELO MZALI 1 S case would have been· filedLthat fair and adequate compensation would have been shs. 35: )'Y:J/- or wore~ Using the sawe analogy therefore· I a~ ~atisfied that the clai □ for daraage~ by the respondent agai•st the agpellant for adultery cci~~ittetl by her with the responden~'s· husband is within the scale of the circu □

stances of the case~ For the .reasons and exa.t1;1les I have gi vep I will allow the claiw of s~s. 30, ooo/ ~ previously clai.1.1ed at the PriLiary Con.rt. Jnly on_ tLis aspect I have wade alter-ation, otherwise the decision of the Distriet Oourt is affir@ed. The appeal is di?@issed with costs. \ \ ~~f- ·/ 11. C, IVk.E}.A PRM.( ExtendGJ Jurisdictioi) 1c/5/39 .. Judgmen-t deli.vered at Morogoro .. 10/5/09. The appallant - present in person .... lesponde~t - Absent. ·., ~ ',·.._f,J-./ ii• C• ~lfb1i,,.1. - .PH1h (Exten1ed Jurisdi~tion) 10/5/r:,9 . Right of appeal explained. ~~- .. /_-;-./ A• C, \JIWEW;. - Pf<l';I \ (Exten1ed Jurisdictio~) I. 1 ,;/5/--9 .._.,, I t...,