Adam Ambali v. Yusufu (PC) Civ. App. 97-D-71; 11/12/71; Mwakasendo Ag. J.

 

Adam Ambali v. Yusufu (PC) Civ. App. 97-D-71; 11/12/71; Mwakasendo Ag. J.

The appellant successfully sued the respondent in the Primary Court for damages for injury he claimed he suffered “due to the respondent’s actions of having an affair” with his daughter. Appellant’s daughter was a 16 year old primary school girl who on occasions absented herself from school and returned home late at nights. She gave evidence to the effect that she was having an affair with the respondent who had intimate relations with her on occasion. The District magistrate reversed the decision of the primary court on the ground that the appellant had failed to establish his claims.

            Held: (1) “With respect I entirely agree with the conclusion reached by the District Court. It would be highly dangerous for the Court to condemn a party in damages on the word of a young girl of doubtful moral fibred, without there being any independent evidence to corroborate her story. In any case it is highly doubtful whether appellant has shown injury to himself or his reputation to ground a claim for damages.” (2) “Furthermore I very much doubt whether this cause of action is maintainable at all under the customary law which appellant’s advocate has asserted is or should be applicable in this case. The only rule of customary law which could in a proper case be relevant is Rule 89 of the Local Customary Law (Declaration)

 

(1972) H.C.D.

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Order 1963 ….. Unfortunately as I am presently advised, the Local Customary Law (Declaration) Order, 1963 has not been made applicable to the areas of jurisdiction of the Dar es Salaam City and Mzizima District Councils. The Customary Law Declaration Order, 1963 is therefore not binding upon the parties in this case.” (3) “But even if I were persuaded that the unmodified customary laws and practice of the African people residing within the aforementioned administrative jurisdictions were similar to the customary rules declared by the 1963 Order and I have no reason to think that they would be different, I would still hold that such rules could be inapplicable to the facts of the present case. By no stretch of the imagination could it be said that the respondent in this case, was guilty of any enticement of appellant’s daughter. Even assuming, as one might be entitled to in the circumstances, that it were true that the respondent had an affair with appellant’s daughter on one or two occasions, that of itself could not in my opinion amount to an enticement. There is no law as far as I know which prevents young people, of opposite sexes associating as they wish, even to the extent of having intimate relations between them.”