19791110 TZHC Mwanza

• 4 J Iii'E' iiiGh CLui' LL (In the District egisry) 4T MWNZ (Pc) CIVIL LFFELL NO. 135 OF 1979 (From the decision of the District Court of Kwjmba Dist±ict at Ngudu in Civil .ippcal No. 23 of 1 979) ED1IRD TGILI ... . , . . . . . . . . . . a • . . . . a • • a a a • . a • • a a .hPPFLLJNT versus NGIRINGW SAHNI , • • • • • • ••..,................ RESPONDENT : D 0 1 F '4UNYFRA, J. The appellant sued the respondent before Nyambiti Primary 'ourt of Kwimba District. He sought damages because the respondent had infected him with a venereal disease - gonorrhea. He won the suit and the trial court awarded him damages amounting to Shs.14 00 /r. The woman appealed to the District Court of Kwimba. The District tagistratc reversed the decision of the trial court and dismissed the appellant's suit on two grounds- That 'the crain is not mairtaiblie under Wasukuma customary law. That the parties were not regally married and as such the appellant had •rIoright to action as this one. The appe.lThnt appeld and, dppdsed tkose two gi,ound, relied 6rc by the District agistrate. In his paragraph 8 of the memorandum of appeal "the a5el1ant argued "Mimi ni JIsukuma, na adi ya namna 'huf-anyika mbele ya wazee vijjjini tangu utoto wangu." I would agree with the appellant. The District Iagistrate is riot a Meukuna and did not .sEt with Wasu1ouna eider's during the appeal. I do not know how he came tknbw that such a claim does not fall within Wasuku'na law, To crown it all, thetrial court sat with two assessors and approv e'--'cl'aim; They know their own customary law and the decision of the District agistrte can be r garded as rbi'traryi As to the second ground that the parties were not lawfully married, again I would agree with the appellant's, contention (par,a 5) that the Distiict 1 agistrate erred in ruling •t1.t hcause they .were. not rnarriec' the app.i1ant could not have action as this against the respondent. Any body. can, sue any .othei' person fcr •transrnitting a badT disease to the othe,r. either. by,making love or by any other contact and irr.espective of any relationship provided such action is recognised by law.. In this case the action is recognissd by Wasukurna customary law. I find that trie action was maintbinable at the Frimy Court eoncetnod.. As to the evidence (which the District Court did not bother to examine) I find that the trial court wa unanirnously'stisfied with the medical reports and the appellant's ëvidence :'tk1 .t it was the respondent who 'infected the appellant with 'gonorrha. 1 se no reason to interfee. I allow the appeal set aside the decision of the District Court and restre that of Iyanbiti 1"rimry Court. Nobody appeared and no costs. MWN . F... .:.. 10th November, 199. • - J.UDGF