MAFURU MAGABANYA v JOSEPH MULYA 1987 TLR 22 (HC)

 

MAFURU MAGABANYA v JOSEPH MULYA 1987 TLR 22 (HC)

Court High Court of Tanzania - Musoma

Judge Mapigano J

28th May, 1987 E

Flynote

Family Law - Enticement - Adultery - Assessment of damages for adultery or enticement - Court to have regard to the custom of the community to which the parties belong - Whether husband and wife were living together - S 74 Law of Marriage Act 1971.

-Headnote

This was an appeal from the District Court of Bunda against quantum of damages assessed by District Magistrate. There was enough evidence that the appellant was living with the respondent's wife after inducing her to desert the respondent.

The two had previously been found committing adultery in consequence of which the respondent was brought to court and adjudged to pay damages to the appellant in civil case No. 124/1984. The parties in this case do not belong to one community.

One is a Msukuma and the other a Mruri and there was nothing to show that the relevant custom of Wasukuma corresponds to that of Waruri.

Held: (i) Under the law, damages for adultery or enticement is in the discretion of the court and in the exercise of its discretion the court is obliged to pay due regard to any relevant custom of the community to which the parties belong;

(ii) this was a serious case of enticement and adultery and that is a circumstance which the court can properly take into account when assessing damages;

(iii) damages which were awarded in this case namely twelve heads of cattle were excessive and the award contained an element of punishment which is not permissible in law;

(iv) an award of five head of cattle should have met the justice of this case.

Case Information

Order accordingly.

No cases referred to.

[zJDz]Judgment

Mapigano, J.: There was sufficient evidence to establish that the appellant Mafuru Magabanya induced the wife of the respondent Joseph Mulya to desert him. There was believable evidence that he kept the woman at his home for several days. He was found in her company on a journey. He was carrying her on his bicycle. The militiaman who had been tipped about the affair apprehended both of them. In the circumstances, the learned district magistrate was justified to conclude that this was not only a case of  enticement but one of adultery as well. It is difficult to imagine that the two were living together without the context of sexual intercourse. More so in this case in view of the fact that the two had previously been found committing adultery, in consequence of which the respondent was brought to court and adjudged to pay damages to the appellant in Civil Case No. 124/84 of the primary court of Bunda. The appeal is dismissed to the extent that it concerns the appellant's liability to pay damages to the respondent.

The appeal from the quantum of damages assessed by the learned district magistrate - has some merit. Under the law damages for adultery or enticement is in the discretion of the court, and in the exercise of its discretion the court is obliged to pay due regard to any relevant custom of the community to which the parties belong, and in the question of adultery, to the question whether the husband and the adulterous wife were living together or apart at the time of the commission of the adultery. The parties in this case I do not belong to one community. One is a Msukuma and the other is a Mruri and there was nothing to show that the relevant custom of the Wasukuma correspond with that of the Waruri. It is true that this was a serious case. As pointed out, it was both a case of enticement and adultery and in my view that is a circumstance which the court can properly take into account when assessing the damages, still, I think that the damages that were awarded in this case, namely twelve head of cattle, were too  expensive. Though the learned magistrate did not expressly say so, one gets the impression that his award contained an element of punishment, which is not permissible at law. In my view an award of five head of cattle should have met the justice of this case.

Accordingly, the appeal succeeds in part in that damages are reduced to five head of cattle. Each part is to bear his costs of this appeal.

Order accordingly.

1987 TLR p24

E