Abraham v. Owden (PC) 52-D-71; Dec. 1971; Mwakasendo Ag. J.

 

Abraham v. Owden (PC) 52-D-71; Dec. 1971; Mwakasendo Ag. J.

The appellant had in an earlier action sued the respondent for damages for adultery with his daughter. That suit was summarily dismissed by the court on the ground, that the appellant did not establish a cause of action, as there was no customary claim for adultery or fornication. Subsequently, the appellant brought the present suit against the same party but this time he grounded his claim partly on enticement and partly on loss of this daughter’s virginity. The primary court gave judgment in his favour but this decision was reversed in the District Court.

            Held: (1) “It is of course a trite principle of law that there is no entitlement to damages without less 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 entitles a 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) [The learned judge read Rule 89 of the Rules, and continues:] from a proper reading of the above provision 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 he 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 be 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.” (4) Appeal dismissed.