19801023 TZHC Musoma

Ak:~- CQSLIL - IN THE HIGH COURT OF ThNNIA AT MUSOI APPELLATE JURISDICTION bt (pa) civii APPEAL NO. 47 OP 1979 (From the decision of the District Court qf Serengeti at Mugumu in Civil Appeal No. 13 of 1977 Before: R.I. I&ikuine, Esq.,. District - Magistre.to and Original Mugumu Primary Court Civil Case No 300 of 1 97 6 ) MATWI MâTAXORE ::::::s::::::::.:::::::::1::::::::::::::::::: iPPEIiLHT VERSUS JOR.A.M WALURA : : : : : : : : : : : : : : : :: : : : :: : :i : : : : : : : : : :: : : : : : : : : : : : : : flESP0IDE1ci - 0 00 J U D GI M BNT MFALIIA 1 J.: The respondent JOBAM WAUBA sued the appellant for adultery and claimed to be paid 8 heads of cattle as comppnsation In support of his case he told the Primary Court at Mugumu that on 20/4/76 at about 6 p.m* he found his wife sleeping with the appellant jr. a thicket. When he surprised them e the appellant ran away leaving on of his tyre sandals behind which he seized and produced it as an exhibit at the trial. He however got hold of his wife and gave her a thorough beating. The wife later escaped and ran to Kenya where he traced her living with the appellant. The appellant did not have much to say in answer to these allegations, apart from general denials. Nevertheless inspite of the overwhelming evidence produced by the respondent in support of his. oasa. the Primary Court found and held that there was not sufficient evidence to support the respondent's allegations of adultery against tJa- 1 appellant. They dismissed the suit with costs. The respondent .7 successfully appealed to the District Court which held rightly that was more than enough evidence to support the respondentts case againff6 the appellant. The District Court ordered that the appellant should pay the compensation claimed by the respondent. The appellant appe$] against this decision arguing that there was no evidence a.e Thund by the trial Court to support the respondent's allegations of adu.ltery :7' against him. It is quite clear that the decision of the Primary Court 1wda perverse. I do not know how the Primary Court Magistrate' and 1ie:.h'/; assessors could have held that there was no evidence to support 'tb'': claim in the face of such overwhelming evidence Apart from thot. that the respondent found the appellant and his wife in he obtained an exhibit i.e. one tyre sandal left behind by the appellant in haste, there was also the evidence of another witn,6W , 1 , 1 (w .2) who saw the appellant running away half naked 'carrying h trousers, lastly there was the half hearted admissiofl by the that the appellant was her long time lover and that although th• the .4ay ' in question they were just sitting talking, she had had sexu4, intercourse with him on previous occassions. In the light ofJ.l'th4.. I do not know what kind of evidence the Primary Court really/qantd 'I • (. / i ! - 2 For these reasons I am satisfied that the respondent had proved his ease in the primary Court Accordingly this appeal has no merit and : is dismissed. As the respondent did not appear there will be no order for costs. lfl OCTOBER, JUDGE S 4 ..