Mwalwange v. Mwalwajo (PC) Civ. App. 52-D-71; Dec. 1972; Mwakasendo Ag. J.

 

Mwalwange v. Mwalwajo (PC) Civ. App. 52-D-71; Dec. 1972; Mwakasendo Ag. J.

Appellant had in an earlier case sued the respondent claiming Shs. 600/= as damages for adultery which he alleged respondent had committed with his daughter. The suit was summarily dismissed by the primary court on the ground that the appellant had failed to establish a cause of action there being no law customary or otherwise entitling a parent to claim damages for the adultery or fornication of his daughter. Subsequently, however, the appellant brought a fresh suit in the same court against the same party and for the same amount of damages as in the earlier case based partly on enticement and partly on the loss of his daughter’s virginity; in the alternative he alleged that the respondent had by one artifice or another enticed his daughter to go and live with him as his concubine. The magistrate decided in his favour and awarded him damages assessed at Shs. 550/= the district court reversed the decision.

            Held: (1) “It is of course a trite principle of law that there is no entitlement to damage without loss or injury – there can be no monetary compensation without injury or loss being shown. No cause of action would therefore lie where a party claiming damages cannot show that the action or conduct of the defendant has directly or indirectly occasioned injury or loss to him. There is in fact nothing in the present case to show that the plaintiff had suffered any loss or injury as a result of his daughter’s loss of virginity. He could not therefore be entitled to any payment of damages.”(2)”There is also another reason why I think the plaintiff’s claim was utterly incompetent. The claim brought by him is alleged to be governed by customary law but there is, to my knowledge, no rule of customary law which entitled the parent of a girl to sue in damages, the person who happens to fornicate with her, be she a virgin or not. The only rule of customary law which could possibly apply to this case, if it were relevant, is Rule 89 of the Local Customary law (Declaration) Order, 1963 which was declared as the customary law of the Rungwe district in the matters stated therein, by the Local Customary Law (Declaration) (No. 3) Order, 1964. Unfortunately however, the facts of the present case do not fall within the ambit of the rule.” (3) “From a proper reading of [Rule 89 of the Declaration] it seems to me that for an action of enticement (which in Kiswahili is “kumshawishi msichana  aliye chini ya miaka 21 aliye chini ya ulezi wa baba yake ahame kwao na kukaa na mwanaume anayedaiwa, kinyumba ) to succeed the plaintiff has to establish to the satisfaction of the Court the following: (a) That the defendant enticed the girl who is his daughter. (b) That his daughter is or was under the age of 21 years and (c) That the daughter was prior to the enticement living with him and under his custody. Only when the plaintiff has succeeded to establish all these conditions can he hope to succeed in an action for enticement under customary law. Now, all that the present appellant alleged in his claim was that his daughter had fornicated with the respondent resulting in her loss of virginity. There was no evidence whatsoever of any enticement. There was no evidence that the girl was

Under age nor was there any evidence to show that the girl was under the custody of the plaintiff, although of course, this could be inferred from the circumstances of the case.” (4) Appeal dismissed.