jenita hussein hinyura another vs steven kalenge lubezagi 2022 tzhc 12642 19 august 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA)

AT KIGOMA

APPELLATE JURISDICTION (DC) CIVIL APPEAL NO. 01 OF 2022 (Arising from Civil Case No. 10 of 2021 of the District Court of Kasulu before I.E. Shuli, RM) JENITA D/O HUSSEIN HINYURA............................................ 1st APPELLANT MARKO S/O MPOLENKILE....................................................... 2nd APPELLANT

VERSUS STEVEN S/O KALENGE LUBEZAGI........................................... RESPONDENT

JUDGMENT 12/08/2022 & 19/08/2022 MANYANDA, J A judgement and decree entered against the appellants namely, Jenifa Hussein Hinyura and Marko Mpolenkile, hereafter simply referred to as "the 1st and 2nd appellants" or generally as "appellants" following a successful action for adultery in the District Court of Kasulu (the trial court) against them, has brought them to this Court in an appeal. The respondent Steven Kalenge Lubezagi sued the duo for damages following what he believed to be adultery act; he was successful anci was Pagel°fl4j^y awarded damages of total amount of Tshs. 31,000,000/=, out of which Tshs. 30,000,000/= been specific damages and Tshs. 1,000,000/=, general damages. Briefly the facts of this matter are that the 1st appellant and the respondent contracted marriage under Christian marriage rituals on 30/10/2010. Until 06/06/2021 when the alleged adultery incident happened were living together as married couple been blessed with six issues. It happened that the respondent suspected the duo to have been having sexual relationship. He set a trap by tailing his wife. On 06/06/2021, he was informed by a person who was tailing her that she was seen with the second appellant entering into a guest house known as Nyakitanga Lodge in Kasulu Town. Then, the respondent gathered his two neighbours and went to the lodge where they saw the duo locked in room number 9

committing sexual inter course. Upon knocking at the door, the duo who had closed the door from inside refused to open until police arrived and arrested them. However, since adultery is not a crime in our land, the respondent was advised to file a civil suit; hence he filed Civil Case No. 10 of 2021. The trial court found that the respondent proved adultery and awarded daiYiages as explained above; hence the instant appeal. Page 2 of 14 The Appellants have raised three grounds of appeal namely:- 1. That the learned Resident Magistrate erred in law and facts by deciding the case in favour of the respondent regardless of the weak evidence adduced by the respondent during the trial.

2. That the learned Resident Magistrate erred in law and facts in deciding that the Respondent's case was proved on the balance of probabilities whereas the evidence of the witnesses consisted of conflicts and inconsistencies; and 3. The learned Resident Magistrate erred in law to order the appellants, to pay specific damages to the tune of Tshs 30^000,000/= and general damages to the tune of Tshs 1,000,000/= which is more of a punishment rather than compensation in adultery cases. At the oral hearing, the appellants prosecuted their appeal personally unrepresented while the respondent enjoyed representation services of Mr. Michael Mwangati, learned Advocate. Arguing in support of the appeal the first appellant been a lawperson submitted generally on all the grounds. She stated that the case was Page 3 of 14 ■ A\,Y framed by the respondent and all the witnesses are relatives of the respondent. She explained that PW2 one Bosco William Gwangineza is a respondent's brother PW3 one Ndagije Ibrahim is a young brother of a worker of the respondent hence they teamed up against her and framed the case against her. She denied involving in adultery. That she knew the 2nd appellant as an agent of mobile money transaction and had his shop near her business area. She used to get services of financial transfer transactions at the 2nd appellant and no more. She complained on the excessive

damages assessed against her and requested this court to interfere. The second appellant also challenged the judgement and decree of the trial court arguing that the same is framed because he never committed any sexual intercourse nor have sexual relationship with the respondent's wife. He argued that he has a mobile money transfer agency shop near the business area of the 1st appellant and that he used to serve her like other normal clients. He denied to have been found having sexual intercourse with the 1st appellant on 06/06/2021. Lastly, he complained against the damages as been too high and pleaded interference by this Court. Page 4 of 14 , On his side, Mr. Mwangati for the Respondent submitted opposing the appeal arguing that the respondent proved adultery at the required standard of proof in civil cases which is on balance of probabilities. That a complaint that the respondents witnesses were his relative is unfounded. He then summarized the evidence adduced by both sides that tnere was good evidence witnessing existence of marriage between the 1st appellant and the respondent as they tied knots in 201G and by the time the dispute arose had ten (10) issues. That he found the 2nd appellant having sexual intercourse with the 1st appellant in a guest house called Nyakitanga Lodge in Kasuiu Town on 06/06/2021. The counsel maintained that there is no contradictions in

evidence of the respondent because all mentioned the incident day to be 06/06/2021. Lastly, the counsel argued on the quantum of general damages to be proper owing to the circumstances of this case. He observed that the appellants been entrepreneurers are capable of paying the same. He prayed the appeal to be dismissed with costs. A*ter the parties submissions it is now my turn to determine this appeal. The issue is whether this appeal is meritorious. From the submissions by the parties and the evidence on record it is not disputed that the 1st appellant and the respondent are married couple who Page 5 of14 cerebrated their marriage under Christian rituals in 2010. That until the dispute arose had six issues. It is not disputed further that the fact of existence of the marriage was well known to the 1st appellant's because the appellants knew each other as their business areas are close to each other. The contention by the appellants is that they did not commit adultery and that the case is framed up. They allege that they had normal business relationship, the 2nd appellant been an agent of mobile money transfer and the 1st appellant his client like others. The counsel for the respondent contends that the evidence is water tight, it is reliable, hence, the trial court rightly found adultery have been proved. The trial court believed the evidence of the respondent and decided in

his favour that adultery was proved. The trial court stated at page 4 of typed judgement as follows:- "if at all this was a set up then what was the motive behind and again PW3 was just a passing by in his normal route how he was part of the plan; all these were speculations claimed by the defendants but the facts speak for themselves, the defendants were caught red handed making love, second defendant knowing she was still married to PW1" Page 6 of 14 Cui Having navigated through the evidence on record, I agree with the findings of the trial court that there is direct eye evidence because the 1st and 2nd appellants were red handed found committing adultery and the circumstances shows that act. The respondent lead evidence that after suspecting his wife having sexual relationship with another man set up a tail through PW2 Bosco William । Gwangineza. On 06/06/2021 in the course of tailing her, Bosco saw her entering into a lodge known as Nyakitanga Lodge in Kasulu District. He kept an eye and called the respondent. The latter arrived at the lodge with another witness PW4 Gidion James. The two witnesses together with PW2 and another one PW3 Ndagije Ibrahim, a passer-by saw, the 1st and 2nd appellants through a cleft between the woods of the door making sexual intercourse.»n room number 9 of the Lodge. According to PW1, the 2nd appellant was lying on top of the 1st aopellant

enjoying the rhythms of sexual intercourse. When these witnesses knocked the door the I5* and 2nd appellant refused to open it until police arrived.. The evidence dully establishes the act of adultery. The allegations that these witnesses are relatives, have no chance because what matters is credibility. Move over there .was no cross examination by the appellants to these witnesses about existence of bloody or close relations. Ground one has no merit. Paae 7 of 14 As regard to ground two, the complaint is about proof of adultery. I think I have covered this ground. This takes me to ground three. In ground three the complaint is on the reliefs. The trial court ordered both appellants jointly to pay the specific damages to the respondent to the tune of Ths 30,000,000/= and general damages of Tshs 1,000,000/=. It stated as follows:- "this court is of opinion that the plaintiffhas succeeded in his suit and order the defendants to pay the plaintiff specific damages to the tune of Tshs 30,000,000/=, general damages to the tune of Tshs 1,000,000/= and costs of the suit". l\s it can be seen in this appeal, the 1st appellant is a wife of the respondent. In Tanzania a husband or a wife has a right to bring a suit in a court of law for damages in adultery against a person with whom his wife or husband has committed adultery. This is per the provisions of section 72(1) of the Law of

marriage Act (LMA), [Cap. 29 R.E. 2019] which reads:- "72(1) A husband or wife may bring a suit for damages against any person with whom his or her spouse has committed adultery", [emphasis added] Page 8 of 14 The word adultery is defined under the Book, Black's Law Dictionary, 8th Edition by Bryan Gesner at page 56 reading as follows ’>1 voluntary sexual Inter course between a married person and some one other than the person's spouse From this definition, it follows therefore that a sexual intercourse between one party who is not married to and another who is married, that amounts to "adultery!'. An adulterer is defined under the same book at page 57 to mean sex with another's wife. At common law an adulterer used to be defined as a man who has sexual inter course with a woman he is not married to. , - . . In simplified words an adulterer* means a trespasser to a marriage. Adultery is committed by a stranger to a marriage. , i t r , • * » *» • • * . The definitions above are in line with the rights for damages for adultery provided under section 72(1) of the LMA which means an action for damages can only be brought in court against an adulterer who is according to the definitions above a trespasser to the marriage This is a third party to the marriage. The words "against a person with whom his or her spouse has committed adultery"used under section 72(1) of the LMA means it

is the third party who interferes with the marriage and the Page 9 of 14 action for adultery is supposed to be brought against him in a court of law. A few decided cases in Tanzania which were decided on the position of the law I have stated above include the case of Musa Mwalugala vs. Ndeshe Hota [1998] TLR 1 where it was held that:- "a man's right to have sexual intercourse with a woman who had been his wife in the past ends with dissolution of his marriage to her; by having sexual intercourse with the woman after the dissolution of marriage with her, and after she had re-married the respondent, the appellant committed adultery", (emphasis added) In that case an action for damages out of adultery was brought against the appellant alone. In another case of Dadi Said Kwanga vs Nurdin Akachapa [1999] TLR 398 it was held that:- "aithough issuance of a taiak is evidence that the marriage has broken down, it does not amount to a dissolution of such marriage, under the law of Marriage Act, only courts of law can dissolve a lawfully contracted marriage; in the absence of such a divorce decree in this case the marriage between the respondent and Joane was still in Page 10 of 14 existence and so anybody having affair with her commits adultery", (emphasis added) In that case the court held that any person who had affairs with the wife who was not dully divorced committed adultery. As it

can be seen, in both cases the action was brought against a third party. In this appeal at hand the respondent brought a suit against both his spouse, the first appellant, and a third party, the 2nd appellant, who going by the definitions above is the adulterer. The 1st appellant wife being a party to the marriage is excluded by the provisions of section 72(1) of the LMA from actions in adultery. It is on this position of the law stated above, which I verily believe to be true, that I find the District Court went astray in holding that the 1st appellant is also liable for damages. The order for the 1st appellant to pay damages is unlawful. As regard the 2nd appellant, I have already pointed cut above that there is ample of evidence’ that the duo were red handed found in flagrante delictor committing sexual intercourse, he is liable of adultery. As regard to the complaint about the specific damages I think the appellants are correct. The trial court awarded specific damages simply Page 11 of 14 because the same was pleaded to by the respondent. It stated at page of the typed judgement as fol lows:- "From the facts of the case the plaintiff was specifically (sic) that his claim is to be paid Tshs 60,000,000/= as special damages so as to be compensated for the mental and stress he has suffered, his image and that of his family being tarnished as a result of the adultery committed

by the defendants. Through the evidence adduced in court there is no doubts that the special damages were made specific and proved As it can be seen, the respondent prayed for reliefs from mental and stress suffered and defamed image or status of his family. Such prayers and when coupled with proof of adultery don't amount to specific damages but rather they amount to general damages. Moreover, it is trite law that damages for adultery are compensatory in nature, that is those intended to atone the damage suffered by the concerned party. Hence the same should not be punitive or exemplary. In the case of Musa Mwalugala vs. Ndeshe Hota (supra) it was also held as follows: "Damages for adultery are always compensatory only, not exemplary or punitive, and the grounds upon Page 12 of 14 which they are awarded are the actual value of the wife lost, compensation to the husband for injury of his feeling, to his honour and hurt to his family". It follows therefore that, unlike specific damages which must be proved, damages for adultery are awarded on the discretion of the court; the same are awarded basing on assessment by the court of the injuries suffered by the claimant. In this matter it was wrong for the trial court to award specific damages which are not discretionary but the same need to be specifically proved by evidence. The trial court ought to award general damages only,

and that is to the responsible party, in this matter the 2nd appellant. In the circumstances, 1 find that the appeal has merit to the extent I have explained above as for as the 1st appellant is concerned and I do hereby find the appeal by the 2nd appellant unmerited. Moreover, I find that the amount of general damages of Tshs 1,000,000/= awarded is too low in the circumstances of this. In exercise of my revisidnal powers, I do hereby quash the order for award of the said general damages to the tune of Tshs 1,000,000/= and, in lieu thereof, I substitute it with the amount of Tshs 10,000,000/=. Consequently I do hereby make the following orders:- age 13 of 14 f- 1. The appeal by the 1st appellant is allowed, the judgement against the appellant is quashed and decree set aside.

2. The appeal by the 2nd appellant is dismissed in its entirety.

3. The 2nd appellant is ordered to pay the respondent general damages to the tune of Tshs 10,000,000/= (say Tanzanian Shillings Ten Million only).

4. The 2nd appellant to pay costs of the appeal. It is so ordered. Dated at Kigoma this 19th August, 2022.

MANYANDA

JUDGE Page 14 of 14