mathew pesambili vs alexius revocatus kagunze 2023 tzhc 21581 29 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA CIVIL APPEAL NO. 09 OF 2022 (Arising from ths decision of the District Court of Tabora in Civil Case No. 03 of2021) MATHEW PESAMBILI....... ........... ......... ...... ............ . APPELLANT VERSUS ALEXIUS REVOCATUS KAGUNZE ............... ............ .............. . RESPONDENT Date ofLast Order: 03.08.2023 Date ofJudgment: 29.09.2023 JUDGMENT KADILU, J, In the district court of Tabora, the respondent successfully sued the appellant claiming for payment of Tshs. 200,000,000/= being general damages for adultery, Tshs. 100,000,000/= as general damages for enticement, costs of the suit and: interest on general damages at 12% from the date of judgment to the date of final payment. Before I proceed, let me narrate a brief background of the matter which gave rise to this appeal as gathered from the record. At the time of the incident, the respondent was the District Executive Director for Miele District Council and the appellant was a businessman in Miele District. The respondent and one Siah Lwitiko Mtafya contracted a Christian marriage in 2010 and they were blessed with three children. It is alleged that on 11/05/2021, the respondent received information from Abas Issa Chimsaia that the appellant was having extra-marital affairs with the respondents wife, Siah Lwitiko Mtafya. It was alleged more that the 1 adulterous relationship between the appellant and the respondent's wife had started way back in 2019 and the respondent tried to warn the appellant, but the latter denied the allegations. He maintained a sexual relationship with the respondent's wife and went on to publish the information to the public around Miele District. It was the respondent's account that on the date of the incident, his wife took their male child to Bugando Hospital at Mwanza for treatment and on her way back to Miele, she was enticed by the appellant to stop in Tabora to spend a night with him, a proposal which she accepted. The respondent got the information and hired ten people including two police officers to accompany him to find out what was happening to his wife in the Star Lodge at Tabora. He arrived at the lodge and found his wife and the appellant in the act of committing adultery before the respondent's male child aged 6 years. The respondent recorded some videos and took photographs of the incident which were admitted by the trial court as exhibits P4 and P5 respectively. A marriage certificate was also admitted as exhibit Pl to prove that Siah was the respondent's wife. The appellant and the respondent's wife were then taken to Tabora Central Police Station and recorded their cautioned statements in which they both admitted that they were arrested while committing adultery. Since adultery is not a crime in Tanzania, the respondent was advised to file a civil suit; hence he filed Civil Case No. 03 of 2021 in the district court of Tabora claiming general damages. It was claimed by the respondent that the said act caused him psychological pain, trauma, emotional distress, loss 2 of reputation as a leader and financial loss due to the expenses incurred in handling the case. The trial court heard both parties and after a full trial, it decided the case in favour of the respondent awarding him Tshs>- 200,000,000/- being general damages for adultery and Tshs. 100,000,000/= as general damages for enticement. The decision aggrieved the appellant. He filed this appeal consisting of the following grounds: 1. That, the trial Magistrate erred in law and facts to entertain the case without having jurisdiction. 2. That, the trial Magistrate erred in law and facts by awarding the respondent Tshs. 300,000,000/- as general damages without compliance with the principles go verning general damages. 3. That, the trial Magistrate erred in law and: facts by awarding general damages to the respondent basing his findings on defamation while the case was not a tortious matter. 4. That, the trial Magistrate erred in law and facts for failure to analyze and evaluate the evidence as a result, she reached an erroneous decision. 5. That, the trial Magistrate erred in law and facts for admitting electronic evidence without compliance with mandatory requirements of the law. 6. That, the trial Magistrate erred in law and facts to make the findings based on weak evidence of the respondent and ignored strong evidence of the appellant. 7. That, the trial Magistrate erred in law and facts to rule that the appellant committed adultery with the respondent's wife while there was no evidence to support it. 8. That, the trial Magistrate erred in law and facts for failure to resolve all the issues framed by the court. 9. That, the trial Magistrate erred in law and facts by using a persona! computer to display videos and pictures while that computer was not part of the findings. 3. 10. That, the trial Magistrate erred in law and facts to decide the case in favour of the respondent based on extraneous matters and no evidence on record. He prayed the court to allow the appeal with costs and set aside the judgment and decree of the district court, The appellant denied to have known the said Siah Lwitiko Mtafya therefore, according to him, there is no way he could have committed adultery with her. During the hearing of this appeal, the appellant was represented by Mr. Hassan Gyunda, Advocate whereas the respondent enjoyed legal services of Mr. Kelvin Kayaga, also the learned Counsel. Mr. Hassan was the first to submit. He prayed to abandon the 1st, 8W and 10th grounds of appeal. He argued the 4th, 6th and 7th grounds together. He also combined the 2nd and 3rd grounds, while the 5th and 9th grounds of appeal were argued jointly. Submitting on the 4th, 6th and 7th grounds of appeal, Mr. Hassan stated that there was no sufficient evidence before the trial Court to prove that the appellant committed adultery with the respondent's wife. He argued that key witnesses were not called and crucial evidence was not presented by the respondent during the trial. He gave examples of the Guest House Visitors' Book that was not produced in evidence, attendants of the Guest House were not called to testify and the wife as well as the respondent's child were not among the witnesses in the trial court. 4 He explained that the appellant disputed his presence at the alleged Guest House on the material day therefore, it was vital to call material witnesses and tender exhibits to establish his presence at the scene on the alleged day and time. To support his argument, Mr. Hassan cited the case of Samwe! Nyerere vR.r Criminal Appeal No. 65 of 2020, Court of Appeal of Tanzania at Arusha. Concerning the 5th and 9th grounds of appeal, Mr. Hassan submitted that the videos and photographs of the incident were admitted by the trial court without compliance with the law. He elaborated that the conditions for admissibility of data messages under Section 18 of the Electronic Transactions Act, [Cap, 442 R.E. 2022] were not fulfilled. A flash disk (exhibit P4) was admitted without ascertaining how the message was generated, stored and communicated to the court. He said the respondent used his smartphone to record the videos, but the phone was neither described in terms of International Mobile Equipment Identity (IMEI) numbers nor was it tendered as an exhibit at the trial court. He referred to the case of Onesmo Nangole v Dr. Stephen Lempmo Kiruswa & 2 Others, Civil Appeal No. 117 of 2017, Court of Appeal of Tanzania at Dar es Salaam to buttress his point. Mr. Hassan added that the devices used to record, store and communicate the videos were not proven to be authentic and properly functioning so, the integrity of the said data was vitiated. For this point, he relied on the case of AU Yousufati 5 Aladin v Munawer Dhiran & Another, Civil Case No. 9 of 2019, High Court of Tanzania at Dar es Salaam. The learned Counsel argued that exhibit P4 was a secondary evidence because it was not the device used to record the evidence. According to him, the requirements for the admissibility of secondary evidence under Section 67 (1) (c) of the Evidence Act [Cap. 6 R.E. 2019] were not met. He also explained that the respondent's evidence was contradictory as on page 28 of the proceedings it was shown that the videos and photographs of the incident were taken by the respondent whereas on paragraph 11 of the plaint and other pages of the proceedings, it was indicated that the members of the public were the ones who took the photographs and videos. He concluded that exhibit P4 departed from the pleadings and was tendered by an incompetent witness since the said members of the public were not called to testify. As such, he urged the court not to accord any weight to exhibit P4. Lastly, Mr. Hassan submitted that the damages awarded by the trial court were unjustified. He said the cause of action is adultery under Section 72 of the Law of Marriage Act [Cap. 29 R.E. 2019] and damages for adultery are awardable under Section 74 of the same Act. The learned Advocate explained that for damages to be awarded under Section 74, regard should be on the customs of the parties, and whether the alleged husband and wife were living together at the time of the adultery. He stated that in this case, 6 the trial court assessed damages based on the status of the respondent, rather than the customs of the parties. In his views, the learned trial Magistrate treated the adultery case as if it was a claim for defamation. To buttress his argument, Mr. Hassan cited the case of Musa Mwalugala v Ndeshe Hota [1998] TLR 1 which was cited with approval in the case of AH YousufaHAladin vMunawerDhiran & Another (supra), where the court held that damages for adultery are always compensatory only, not exemplary or punitive, and the grounds upon which they are awarded are the actual value of the wife lost, compensation to the husband for injury of his feelings, to his honour and hurt to his family. According to Mr. Hassan; the trial court would have been assisted by the Local Customary Law (Declaration) Order No. 4 of 1963 on this point, short of which, the court misdirected itself by mixing up the factors for assessing damages for defamation and those of adultery. More so, when the trial court Magistrate included enticement in the assessment of damages while adultery and enticement are two different wrongs provided under Sections 72 and 73 of the Law of Marriage Act. Accordingly, he submitted that enticement was not proved in the case at hand. The learned Advocate opined that it was improper for the trial court to award general damages for both adultery and enticement. He also faulted the trial court by awarding 12% interest on general damages. He explained that interests are never awarded on general 7 damages as the trial court did, rather they are usually awarded in commercial cases and in respect of specific damages only. In opposing the appeal, Mr. Kelvin submitted that the ciaim of enticement and adultery were proved sufficiently as the respondent called all material witnesses. He explained that Section 143 of the Evidence Act is clear that in any case, no particular number of witnesses is required for the proof of any fact. He thus, stated that evidence of the respondent fulfilled all the requirements under Sections 61 and 62 of the Evidence Act. Mr. Kelvin stated that evidence of PW3 was sufficiently reliable as it was corroborated by PW1 and PW5 as shown on page 57 of the proceedings. He referred to the case of GoodluckKyando v R,f [2006] TLR 363 and added that every witness is entitled to credence and his testimony should be accepted unless there are good and cogent reasons for not believing him. Concerning the electronic evidence admitted as exhibits P4 and P5, the learned Advocate expounded that even without electronic evidence, the case was proved by direct evidence of the witnesses to the standard required. According to him, the condition and quality of the phone used in recording the said evidence is well described by PW1 as shown on page 25 of the proceedings and an affidavit of the respondent, exhibit P3. He cited the case of Ami Tanzania Ltd v Prosper Joseph Mseie, Civil Appeal No. 159 of 2020, Court of Appeal of Tanzania at Dar es Salaam. Mr. Kelvin argued that since the appellant's Advocate does not dispute the veracity of the contents of exhibits P4 and P5, rather the device used to play them, there was nothing 8 wrong in so far as admissibility is concerned. He concluded that Section 67 of the Evidence Act is not applicable in this case as exhibits P4 and P5 are not secondary evidence as alleged by Mr. Hassan. Regarding the damages awarded to the respondent, Mr. Kelvin submitted that the respondent claimed general damages and not specific or special damages. He explained that it was sufficient for the respondent to plead for general damages and leave it to the court to assess the amount awarded. He added that the trial court could not consider the customs of the parties in this case because the parties do not belong to the same community and: the claim is based on statutory law, not customary laws. He stated that in assessing damages in adultery cases, courts consider the husband's honour, loss of wife and injury occasioned to the family. Mr. Kelvin refuted the contention that the damages awarded to the respondent were excessive and punitive. He invited this court to read the case of Zacharia Lugendo v Shadrack Lumilang'omba, [1987] T.L.R 31. The learned Advocate submitted that PW1, PW3 and PW5 testified in the trial court about the way the appellant enticed the appellant's wife. Regarding the interest awarded on general damages, Mr. Kelvin opined that no law prohibits interest on general damages. To support his position, he referred to the cases Of Kibwana & General TireE.A. Ltd vRoseJumbe, [1993] TLR 175 and Abdallah Rajabu v Sada Abdallah, [1994] TLR 132. He prayed this court to dismiss the appeal with costs and uphold the decision of the trial court. 9 By way of rejoinder, Mr. Hassan maintained that the respondent failed to call materia! witnesses who were within reach but were not called without sufficient reason being shown. He urged the court to draw adverse inference against the respondent for failure to call material witnesses. He continued to submit that direct evidence of the respondent's witnesses is insufficient to prove adultery if exhibits P4 and P5 are expunged from records. He explained that a flash disk is a document in the context of electronic evidence and its admission should comply with the requirements of Section 67 of the Evidence Act. According to him, a mere statement by the respondent that the phone was in good condition is not a guarantee that the said evidence was not tampered with. On the strength of his submissions, Mr. Hassan urged this court to allow the appeal and the appellant's prayers to be granted. Having examined the memorandum of appeal, and the reply thereof, and after considering the rival submissions by the Counsel for both parties, I find the issue for determination is whether the appeal is meritorious or not. It can be deduced that the grounds of appeal are based on three aspects namely; first, the procedure employed by the trial court to receive evidence of the respondent. Second, the weight accorded to the respondent's evidence and third, the reliefs awarded to the respondent. The appellant complains that the respondent's evidence before the trial court was insufficient to prove that the appellant committed adultery. Mr. Hassan asserted that the appellant was not at the alleged Guest House on the material day. For that reason, he said, it was important for the io respondent to call as witnesses, the Guest House's attendants, the respondent's wife and his child who was said to be with his mother at the scene. He added that the Guest House's Visitors' Book was not tendered as one of the exhibits in the trial court. PW2 and PW4 testified that they went to Star Lodge on the date of the incident and found the appellant with the respondent's wife. On the other hand, the respondent and his nephew (DW2) stated that on the day and time of the incident, the appellant was at Miele District in Katavi Region up to OO.OOhrs. Evidence of PW2 and PW4 was in line with the testimony of PW1, PW3 and PW5 who told the trial court that on the day of the incident, the appellant: was publicizing around Miele that he was going to have sexual intercourse with the respondent's wife. PW5 tipped the respondent, the information which led to finding the appellant committing adultery with the respondent's wife in Ta bora. Apart from the appellant, DW2 was the only defence witness who stated that the appellant did not leave Miele on a fateful day so, he was not in Star Lodge at Tabora. There is no detailed explanation as to where the appellant was on 12/05/2021, a few hours after he was alleged to be with his uncle in Miele. In the case of Kubezya John vR., Criminal Appeal No. 488 of 2015, the Court of Appeal held that in situations where the accused person is depending on the defence of a/ibi, he must demonstrate his <3//Z?/albeit on a balance of probabilities. Much as I am aware that every witness is entitled to credence, I am also conscious that the court does not have to believe every piece of li evidence unless it is convinced in all details that the story is reasonably true. In the case at hand, DW2 who is the uncle of the appellant narrated mere words that he was at Miele with the appellant during the night of the complained incident. When he was cross-examined as to whether he had evidence to prove the allegation, he said he did not have any. I have applied my mind to the merits and demerits of the respondent's evidence on this point and tested it against the proven facts of the appellant's testimony. I have then reached to the probability that on this point, the respondent's evidence is more credible than that of the appellant. The appellant complains further that crucial witnesses of the respondent were not called to testify in the trial court and on that basis, the court was supposed to draw an adverse inference against the respondent. For this, I wish to reiterate a Well-known rule under Section 143 of the Evidence Act that no particular number of witnesses is required in any case to prove any fact. The appellant's lamentation is on the non-joinder of the respondent's wife to the case for identification of the person involved in the alleged adultery. The Black's Law Dictionary, 9th Edn. (2004) on page 56 defines adultery as voluntary sexual intercourse between a married person and someone other than the person's spouse. In this case, proof of marriage between the respondent and Siah Lwitiko Mtafya was made through a marriage certificate which was admitted as exhibit Pl. Under Order 1 Rule 10 (2) of the Civil Procedure Code [Cap. 33 R.E. 2022], it is provided that: "The court may, at any stage of the proceedings, ... order that the name of any party improperlyjoined, whether as plaintiffor defendant, be struck out, 12 and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added." Applying the above provision to the facts of this case, I am of the considered view that joining the respondent's wife was unnecessary for the determination of the questions before the trial court since the claims of adultery and reliefs sought were directed to the appellant and there is nothing to suggest that joining her to the case would be of any significance. This is so because the respondent's wife is alleged to have been voluntarily involved in the immoral act with the appellant and as testified by the respondent, she disappeared from home from the time of the incident to date. As for the respondent's child, I think he was humiliated to see the immoral acts between his mother and the appellant hence, calling him to testify in court would mean the court's endorsed double humiliation and a serious violation of the Law of the Child Act, especially the best interest principle. For these reasons, this ground of appeal lacks merit and I dismiss it accordingly. The other complaint by the appellant is that exhibits P4 and P5 were wrongly admitted by the trial court. Being electronic evidence (photographs and videos), the appellant contends that their admission by the court violated the procedure stipulated under Section 18 of the Electronic Transactions Act, 13 [Cap. 442 R.E, 2022]. Section 18 (2) (a) and (b) of the Act provides that in determining the admissibility and evidential weight of a data message, the court should consider the reliability of how the data message was generated, stored or communicated as well as the reliability of how the integrity of the data message was maintained. The appellant alleges that there was no description of the chain of events showing how data message from exhibit P4 (flash disk) was generated, stored and communicated to the court. In addition^ the mobile phone that was used to take the alleged photographs and videos was not tendered in evidence. In the case of Onesmo Nangole vDr. Steven Lemomo Kiruswa & 2 Others, Civil Appeal No. 117 of 2017, the Court of Appeal held that a flash disk and mobile phone are tangible devices that can capture record, store electronic data on documentary accounts of memorable past events. Such electronic data is permanent, readable and admissible in evidence constituting electronic documentation. Therefore, exhibits P4 and P5 are documents in terms of the Evidence Act and electronic form in the Electronic Transactions Act, I do not agree with: the contention by Mr. Hassan that exhibit P4 was a secondary evidence as it was not the one used to record the videos. Nevertheless, the mobile phone which was used to record, store and maintain data messages up to when it was received by the trial court, was not included in the list of exhibits. Thus, the data message admitted by the court through exhibits P4 and P5 lacked the legal base for not showing where it originated and passed through up to the court as exhibits. This was 14 a serious omission that affected data reliability and weakened the evidential value of the data message stored in exhibits P4 and P5. I thus expunge from the record exhibits P4 and P5 for being improperly admitted by the trial court. As to the effect of expunging exhibits P4 and P5, I agree with the view by the Advocate for the respondent that the remaining prosecution evidence was sufficient to prove the case against the appellant. I hold that view because it is on record that PW1, PW2, PW3 and PW5 went to Star Lodge on the night of the incident and found the appellant committing adultery with the respondent's wife. In the case of Gai Ipenzuie v Sumi Magoye [1983] TLR 289, it was held that it is not the law that direct evidence of persons caught in flagrante delicto is the only admissible evidence to prove adultery. Very rarely adultery is proved by direct evidence. The common practice is that adultery is proved by circumstantial evidence, Adultery cases can rarely be proved by direct evidence, but rather by circumstantial evidence. In the case at hand, it is the finding of this court that not only circumstantial but also direct evidence of PWl, PW2, PW3 and PW5 was used by the trial court to rule that the respondent's case was proved cogently since these witnesses stated that they saw the appellant committing adultery with the respondent's wife in the lodge. The last point for me to determine is concerning the reliefs awarded to the respondent by the trial court. The appellant alleges that the trial court treated the case as if it was the tort of defamation hence, it awarded 15 damages by considering the reputation or status of the respondent. In that regard, Mr. Hassan argued that the Tshs. 300,000,000/= damages were to the high side and punitive. The learned Advocate opined that the court could have considered the customs of the parties in awarding the damages as required under Section 74 of the Law of Marriage Act. Perusal of the record shows that apart from general damages for adultery, the appellant was also ordered to pay Tshs. 100,000,000/= to the respondent as damages for enticement, interest and costs of the suit. I should hasten to state here that, it was a misdirection by the trial court's Magistrate to award damages for both enticement and adultery. In my humble view, where enticement has reached to the commission of adultery, the court should deal with adultery only and not both enticement and adultery. About the interest, it is a settled position of the law that interest is usually awarded in. respect of special damages which are pleaded and specificajly proved by the plaintiff. See the case of John Raphael Boko -v Princess Leisure Ltd (T)f Civil Case No. 118 of 2022, High Court of Tanzania at Dar es Salaam, In the absence of special damages originating from loss of business, the court was not justified to award interest at the rate of 12% from the date of judgment to the day of final payment because adultery is never a business that may result in lessor profit to attract interest. 16 As for the general damages, it was correctly argued that they are awarded at the court's discretion which should be exercised judicially. The law is very clear under Section 74 (1) of the Law of Marriage Act that general damages for adultery are not supposed to include exemplary or punitive elements. Among the matters which the court has to consider in awarding genera] damages for adultery are relevant customs of the community to which the parties belong and whether husband and wife were living together or apart. In the case before me, it is undisputed that the respondent was living together with his wife with whom the appellant committed adultery. Concerning the custom, there is nothing on record suggesting that the respondent and his wife belong to the same custom. In the circumstances, the trial Magistrate cannot be faulted for not considering the customs of the parties in awarding general damages. Notwithstanding, I consider the Tshs. 200,000,000/- awarded to the respondent as general damages for adultery to be out of context, excessive, and/or punitive. In my humble opinion, the trial court was required to consider the consequences of the appellants act to the respondent and not the reputation or status of the claimant since the case was not about the defamatory claim. On this point, I am persuaded by Mr. Kelvin's argument that the court was supposed to consider the husband's honour, the loss of his wife and the injury occasioned to the family. Considering that the intention of awarding general damages in adultery cases is to compensate and not to enrich the plaintiff or to punish the 17 defendant, the award of Tshs. 200,000,000/= given by the trial court is inordinately high and I therefore reduce it to Tshs. 10,000,000/= which in my view will be the justice of the case in the circumstances. Having in mind that the appeal is partly allowed, I make no order as to the costs. However, since the respondent has substantially worn the case at the trial court, it is only just to entitle him his costs therein and thus the awarded costs at the trial court are left undisturbed. In the final result, the appeal succeeds to the extent shown. Order accordingly. DILU, MJ. JUDGE 29/09/2023. 18 Court:- Judgment delivered in the presence of the appellant and Mr. Akram Magoti holding brief for Advocate Kelvin Kayaga in the open court. G.P. NGAEJE AG. DEPUTY REGISTRAR 29/09/2023 L . •’ . •« HIGHGu.-.-. / Ci- i'^MA Court:- IABORA Right of appeal fully explained. G.P. NGAEJE AG. DEPUTY REGISTRAR 29/09/2023 DfcPUir IIIOK Cr iAAtAA'fA IABORA 19