Ananiah v. Richard Mwaitebele (PC) Civ. App. 81-D-71; 11/12/71 Mwakasendo Ag. J.

Ananiah v. Richard Mwaitebele (PC) Civ. App. 81-D-71; 11/12/71 Mwakasendo Ag. J.

The appellant sued the respondent for enticing his ward Sabina whom the primary court found to be below the age of 21 years. The established facts were that the girl left the appellant’s home at the instigation of the respondent in order to live in concubinage with him. The primary court awarded the appellant compensation. The district court reversed the decision holding that the girl was fully grown-up woman over the age of 21 years there fore no action for enticement could be brought.

            Held: (1) “The medical certificate issued after the girl had been examined by a Doctor on my directions, shows that the girl is aged about 20 years and certainly not above 21 years. It follows therefore that the Judgment of the District Court which rested solely on the finding of age to be over 21, cannot, on that ground, be sustained.” (2) “There still remains the question whether the decision of the Primary Court is sustainable in law or not. It is, I think, generally accepted by both parties that the operative the area within which the parties reside. Both parties are Africans of the Nyakyusa tribe. They are both residents within the limits of the jurisdiction of the Dar es Salaam City Council. But I am reliably advised that as of the time of this judgment there is no restatement of customary law applicable to all Africans within the jurisdiction of the Dar es Salaam City Council. I am further advised that the Local Customary Law (Declaration) Order, 1963 has not been made applicable to the area of jurisdiction of the Dar es Salaam City Council. In my opinion therefore the customary law governing the parties district, which is Rungwe District.” (3) “By the Local Customary Law (Declaration) (No. 3) Order, 1964 (GN. 250 of 8/5/64) the Local Customary Law (Declaration) Order, 1963 was made applicable with only slight modifications, to the African within the jurisdiction of the Rungwe District Council to whom the Local Customary Law foretasted relates. In the instant case, having regard to the tribal affinity of the parties, I am satisfied that the Customary Law operative in the matter in dispute is that declared by the Local Customary Law (Declaration) Order, 1963 and accordingly I will deal with this appeal with particular reference to the rules contained in the Local Customary Law (Declaration) Order, 1963.” (4) “The customary rule which in my judgment, has an relevancy to the matter in issue is Rule 89 of the Local Customary (Declaration) Order, 1963, which provides: “89. Kama mwanamume anamshawishi msichana aliye chini ya miaka 21 (aliye chini ya ulinzi wa baba yake ) ahame kwao na kukaa naye kinyumba, and hatia na anastahili kulipa faini, isiyopungua shilingi 50/= na kumlipa fidia baba wa yule binti isiyopungua shilling 100/=. Fidia ni lazima alipwe kabla ya faini.” From reading the judgment of the Primary Court, it is abundantly clear that it had this rule in mind when reaching the conclusion

 

(1972) H.C.D.

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That the appellant was entitled to compensation for the enticement of his ward by the respondent. I have no doubt in my mind that that conclusion was right. This conclusion was in fact inevitable in view of the clear findings of fact. “(5) “However, having found that the Primary Court was right in finding in favour of the appellant, I am unable to uphold the award of Shs. 600/= as damages in the cause. There is to my mind no discernible principle on which these damages were assessed and awarded. I fail entirely to see that the facts in this case would justify the award of such a large sum of money as damages. While I concede that the question of what to award is one in the absolute discretion of the trial Court, nevertheless, the Court must state reasons for awarding a substantial sum as damages. If this is not done it is unlikely that such an award would be affirmed by this Court. Be that as it may, on a careful consideration of the facts in this case, I am not in the least persuaded that an award of Shs. 600/= is justified. In all the circumstances I am satisfied that the sum awarded is exorbitant and should be reduced. The award will therefore be reduced to a sum of Shs. 200/= which sum is to be paid to the appellant.” (6)”It may perhaps be argued that the appellant is not entitled to receive this money, as he is only a guardian and not the father of the girl. But I think such an argument would be completely misconceived. The words “aliye chini ya ulinzi wa baba yake” in rule 89, must be given a broad and sensible construction if the whole object of the rule is not to be defeated.”