alack so mbilinyi vs edward samwel 2014 tzhc 2326 27 august 2014

IN THE HIGH COURT OF TANZANIA AT TABORA PC. CIVIL APPEAL NO. 1 OF 2014 (Arising from KAHAMA District Court Civil Appeal No. 9 of 2013 and Original Civil Case No. 109 of 2012 URBAN Primary Court) ALACK S/O MBILINYI....................................................APPELLANT VERSUS EDWARD SAM W EL.....................................................RESPONDENT JUDGMENT 12th & 27th August, 2014 S. M. RUMANYIKA. J Alack Mbilinyi (the Appellant), is in this 2nd appeal, not happy with the 17/07/2013 decision of the District court --Kahama (D/C). Whereby upholding the 29.01.2013 decision of Kahama Urban Primary court(the trial court). It is, I think of much use also to state it here, that Edward Samwel (the Respondent), was awarded shs. 1,000,000/= (shs. One million). Out of shs. 3,000,000/= claimed. Being damages for adultery. Both of them appear in person. In his three (3) grounds of appeal, the Appellant attacks the D/C's decision mainly on points as under:- 1. Failure by the 1st appeal court to hold that the Respondent had ' no locus standi. 2. The D/C having relied on the materially contradicting evidence of Pw l and Pw2. 3. Failure by the D/C to evaluate, the evidence on record properly. During the hearing of this appeal, the Appellant materially submitted that as long as the Respondent did not show and prove existence of marriage between him and Tekla Emmanuel, no adultery was proved. He had no locus standi. That the Learned Resident Magistrate wrongly believed in evidence of the 1st two prosecution witnesses. As they contradicted each other on when exactly, if at all, did the incident take place. At 19.00 hours, 14.00 hours or at 21.00 hours! That although no Appellant's clothes at all, were tendered in court as exhibits, yet still the trial court believed it, and this fact the District court upheld, that the Appellant was caught infragrante delicto_naked in the Respondent's room in bed. That the District court turned a blind 'eye to his complaints. Namely the trial court had denied him right to call witnesses. And therefore, abrogation of the right to be heard. Leave alone falsifying by the trial magistrate of the evidence. The Respondent on his part, submitted that like the Appellant conceding to his evidence, the latter ventured not to call witnesses. That he (Appellant) was all by himself. But acknowledged Tekla Samwel as being the Respondent's wife. As regards falsifying by the trial magistrate of the evidence, the Respondent avers that one should have had it as a ground of appeal in the list. But it wasn't the case. Submitted the Respondent. It is evident by the prosecution in a nutshell, that on arrival from safari now at about 21.00 hours, the Respondent caught the Appellant almost infragrante delictojn bed at his (Respondent) home. It was no longer at ease. Some neighbors arrived. They broke into and separated the two. His wife (Tekla) fled the matrimonial home todate. That blessed with one issue, their marriage was almost 13 years old. That is it. The Appellant on his side materially contends that indeed, he was found accompanied by the Respondent's wife in bed room. Invited by her only to purchase some. As she was a cloth monger. But for intervention by the Respondent. Instead, the latter accused him of committing adulterous association. Due to the fracas, some neighbors arrived. They broke into and separated the fighters. The issue is whether Appellant committed adultery and if answered affirmatively, whether the Respondent is entitled to damages. When is adultery cause of action? I do not think that one is bound to prove sexual ’intercourse being or just having been done by wife/husband with another. Suffices one to show in evidence, that the pair was, in the eyes of any reasonable tribunal, found in a lovely moment. Whether or not before doing the act is immaterial. The proof is only on probable standard. As at times, by itself some lovers' conducts might be more than doing sexual intercourse. Provided one of them was a legal wife/husband of the complainant. No doubt the Appellant had it in mind and admits in evidence that the material Tekla Samwel was at the time wife of the Respondent. They agreed each other. The two met at the material time at the matrimonial home. On this one, the record speaks by itself; ....... ninachoiua mke wa mdai (Tekla Samwel @ Tekla Makenya) ni mfanyabiashara ya nguo......... mara kwa mara amekuwa ananipa nguo na baadaye na mlipa ....... tarehe 2/12/2012....... mke wake alinipigia simu kuwa nipite hapo kwake (emphasis added). Literally means that he knew it before, that the said Tekla a cloth monger was wife of the Respondent. Invited, by her to the matrimonial home now was there to collect some. But the Respondent intervened before. Therefore by questioning at this stage, the Respondent's locus standi cannot be, but a mere afterthought. Ground No. 1 of the appeal is dismissed. As regards to when did the incident occur, only the Respondent (Pwl) testifies. That it was about 21.00 hours Pw2 is completely silent on this aspect. The question of the two witnesses contradicting each other does not arise. Ground 2 of appeal fails. Pw2's evidence, equally not controverted is that before the incident, he found the Appellant and Respondent's wife having some drinks together around. So was the Pw3's evidence that the Appellant was, during the fracas holding his trousers. While the lady was not in under pants. Leave alone the Respondent's evidence that the two were habitual lovers. Had warned them several times and repeatedly but all vain. Whereas it is now settled that the Respondent found his wife and Appellant in the bed room more or less naked, importantly so at night, then the very Respondent's wife took on heels todate, it cannot be denied that the pair had, and was found in a lovely moment. Which by any definitions adulterous association was on the balance of probabilities proved. Infact there' is nothing to fault the two courts bellow on evaluation of evidence. Ground No. 3 of appeal also crumbles. Again the Appellant raised two new points. Falsifying by the trial magistrate (including not recording some) of evidence. Also denial of him right to call witnesses. On this one, I will only say that the records £ available do not have the bearing. But as more serious as they may seem to be, the two complaints ought to have been raised in the petition of appeal. They were not. Therefore the complaints are mere after thought, non meritorious and are of no effects at all. Appeal is dismissed with costs here and at the two courts bellow. Decision and orders of the District court are upheld. R/A explained. ‘ S.M.RUMANYIKA JUDGE 26/ 08/2014 Delivered under my hand and seal of the court in chambers. This 27/08/2014. In the absence of the Appellant, but M/s Lucresia is present for the Respondent. S.M.RUMANYIKA JUDGE 27/ 08/2014