19770224 TZHC Mwanza

I IN THE HiGH COURT OF N2LN1 AT MiIcZ4 0Mwan2 A Registry) P. C. CIVIL AIPPLZI3L 3E NO. 296 OF 1975 (From the decision of the District Coort of Musoma in Civil Appeal No. 55 of 1975) Before Mr. I. L. Nyamakato, D. N.) Original Zanaki. Primary Court Civil Case No. 8 of 1975 NYT1RJ ., .... ...... .... ...•.-..••..• LPFELLNT versus SERgK HUNG1P .. . . .. . . . . .. .. •.. .• ... . •. . . . . . . . . RESPONDENT J U D G H E N P NGNGi J. The appellant successfully sued the r sooncLent for damages for • adultery. He was awarded two hea.s of cattic as damages. The respondent appealed against that decision to the Distrio court and his appeal was • allowed. The appellant is appealing against the District Court's decision allowing the respondent's appeal. It has not been disputed in these proceedings th t the appellant is not the husband of the woman whom he ella L committed adultery with the respondent. The womai's husband is called Nazengo. The appellant produced before the trial court a letter fram Nazengo Mwita authorising him to sue on behalf of Hazengo. The first appellate court hell that although under section 29(2) of Cap. 537 a plaintiff can authorise a relative to conduct a case on his behalf this does not apply to cases of adultery since under paragraph 110 of the Cestomary Law Declaration only a husband can sue for damages for adultery. The court therefore dismissed the appeal on the ground that the appellant was not a competent to file the suit. I hav gone through the provisiorBof the laws refered to by the first appellate court magistrate and I cannt but agree with kis inter- pretation of the provisions. 1 think that apart from the fact that the appellant was not competent to file the su:it it was wrong for him to sue in his own name. In a proper case the plaint shoull clearly show that the person suing is doing so on behalf of enamed. persono But that asile, section 72(1) of the Law of Marriage !ct 1971 clearly states that only a husband or a wife may bring a suit for u:na as :gainst any person with whom his or her spouse has •cmmitted adultery. The first appellate court therefore rightly allowed the respondent's apeal on the ground that the appellant was not competent to sue for damages for adultery because he was not the woman's spouse. This appeal is accorlinglyclismissed with costs. (. P. Ma n g a J U D G E H viANZA 24th February, 1977 N