JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA 1986 TLR 104 (HC)

 

JOHN KAHAMILA v PASCHAL JONATHAN & HILDA HOSIA 1986 TLR 104 (HC)

Court High Court of Tanzania - Bukoba

Judge Mwalusanya J

B

October 19, 1985.

(PC) CIVIL APPEAL 95 OF 1983

Flynote

Jurisdiction - Adultery - Claim for adultery in Christian marriages -Court of original jurisdiction

- Law of Marriage Act, 1971, s.75.

C Family Law - Dissolution of marriage - Long separation of spouses -Whether dissolves

marriage - Law of Marriage Act, 1971, s.107.

-Headnote

This was an action for damages for adultery involving the second respondent who had

contracted a Christian marriage with the appellant. The action was commenced in the Primary

Court. There was also an impression that long separation D of the spouses brings about

automatic dissolution of marriage.

Held: (i) Under s.75 of the Law of Marriage Act, 1971, primary courts have no jurisdiction to

entertain claims for E adultery where the parties involved contracted a civil marriage or a

Christian marriage: the appellant in this case therefore took his claim to the wrong court;

(ii) a marriage may only be dissolved by a court of law and not by long separation of the

spouses; until the F marriage is properly dissolved, the second respondent is still the appellant's

wife, their separation notwithstanding.

Case Information

Appeal dismissed.

G Case referred to:

1. Pett v Greyhound Racing Association [1969]1 Q.B.125

[zJDz]Judgment

Mwalusanya, J.: This is a second appeal. In both courts below appellant John Kahamila lost. He

H was claiming shs. 800/= as damages for adultery from the 1st respondent Paschal s/o Jonathan.

If he had sought the services of a lawyer no doubt he would not have been caught wrong footed

as it were in that both the suit and the appeals were misconceived. This again underscores the

importance of legal services in our society and I am at a loss for I those characters who hold the

lawyers in contempt. For example in

1986 TLR p105

MWALUSANYA J

A the 17th century England William Shakespeare (1564 - 1616) in Henry VI Part 11 - Scene IV

had prayed that:

'The first thing we do, let us kill all the lawyers'.

B And yet another English novelist John Gray (1685 - 1732) in his 'The Beggar's Opera 1 Chap.

... did not spare the lawyers when he said:

'A fox may steal your hens, Sir, If lawyers' hand is fee'd, Sir, He steals your whole estate'.

C

But I think the bitterest criticism was that unleashed by a citizen of England to his 'monarch'

Cromwell when he said of lawyers: D

'------ lying lawyers whose heads are full of mischief and their pens dipped in gall and

wormwood; their teeth as swords and spears, and their throats open sepulchers, to devour and

swallow up the poor and needy from amongst men'.

E And yet another has attempted with sarcasm to define as who is a lawyer. He is Ambrose

Bierce in the 'The Devil's Dictionary' by Doubleday & Co. Inc. Delphin Books at p. 118.:

'Lawyer - one skilled in circumvention of the law' F

And as if that was not enough there is a classical joke on lawyers that a typical textbook for

every law student has the following chapters:

G Page 1 - 10 (Chap.1) : Libel laws.

Page 11 - 24 Chap.2 : Divorce Laws.

Page 25 - 36 Chap.3: Criminal Laws.

Page 37 - 500 Chap. 4 : Loopholes

H But I am satisfied that the picture of a lawyer is wrong. Those who think that way are

misguided. Lawyers play a very useful role in society. We read in Boswell: 'Life of Johnson' Vol.

5 pp. 28 - 29; also quoted in Soonavala: 'Advocacy' 2nd Edn. at p. 921:

I 'As it rarely happens that a man is fit to plead his own cause,

1986 TLR p106

MUSHI J

A lawyers are a class of the community, who, by study and experience, have acquired the

art and power of arranging evidence, and of applying to the points at issue that the law has to

settle. A lawyer is to do for his client all his client might fairly do for himself, if he could. If by

superiority of attention, of knowledge, of skill and a better method of communication, he has

the advantage to which B he is entitled'.

And we have an incisive commentary from that eminent English lawyer Lord Denning M.R. in

Pett v Greyhound C Racing Association Ltd: [1969] 1 Q) 1 Q.B.125 at p.13:

'It is not every man who has the ability to defend himself on his own. He cannot bring

out the points in his own favour or the weakness in the other side. He may be tongue - tied or

nervous, confused or wanting in intelligence. He cannot examine or cross D - examine

witnesses. We see it every day. A magistrate says to a man: 'You can ask any question you like';

whereupon the man immediately starts to make a speech. If justice is to be, he ought to have the

help of someone to speak for him. And who better E than a lawyer who has been trained for

the task? I should have thought, therefore, that when a man's reputation or livelihood is at

stake, he not only has a right to speak by his own mouth. He also has a right to speak by

counsel'.

F I associate myself with these views that lawyers play a very useful part in society. And as I

said earlier if appellant in this appeal had sought lawyer's advice, this suit would not have been

filed in the first place.

G This was a suit for a claim of damages for adultery. Appellant had contracted a Christian

marriage on 12/8/1973 at Kashasha Lutheran Church in Kagera Region. But under s.75 of the

Law of Marriage Act No. 5 of 1971 a Primary Court shall have jurisdiction to entertain a suit for

a claim of damages for adultery, where the parties were married in H accordance with the

customary law or Islamic law. If the parties contracted a civil marriage or Christian marriage

then they have to file a suit for claim of damages for adultery at the District Court. So it is

obvious in this case that appellant filed the suit at the wrong forum. For that reason the appeal

fails.

I There is another misapprehension which I must set straight for the benefit of the parties.

The trial court and the respondents

1986 TLR p107

A harbour the impression that a marriage may be dissolved by long separation of the spouses.

That is wrong. A marriage may only be dissolved by a court of law - s.107 of the Law of

Marriage Act No. 5/1971. As the position stands in this case the 2nd respondent is still the wife

of the appellant until their marriage is dissolved by a court of law. If B she persists to cohabit

with the 1st respondent without divorcing the former husband, 1st respondent will be definitely

liable in damages for adultery.

Be that as it may, for the reasons I have attempted to set out above, this appeal is dismissed with

costs C

Appeal dismissed.

D