Ng’oga v Maige ((PC) Civil Appeal No. 18 of 2000) [2000] TZHC 698 (22 November 2000)

BUSHANGILA NG ’ OGA v. MANYANDA MAIGE 335 BUSHANGILA NG ’ OGA n MANYANDA MAIGE HIGH COURT OF TANZANIA ATTABORA (Mwita, J.) (PC) CIVIL APPEAL No. 18 OF 2000 (From the District Court of Kahama at Kahama in Civil Appeal No. 62 of 1999 originating from Urban Primary Court of Kahama in Civil Case No. 62 of 1999) Family Law - Enticement of another ’ s wife - Medicineman retaining respondent s wife for six months to treat her - Wife subsequently refuses to return to the respondent - Enticement established - Sections 73 and 74 of the Law of Marriage Act 1971. Civil Practice and Procedure - Appeals — Powers of appellate Court - Whether a court on second appeal may interfere with Lower Courts ’ findings of fact. Family Law - Damages - Assessment of damages - Duty of second appellate Court. The respondent took his wife, Mirembe Sato, to a local medicine-man, the appellant, for treatment. Having performed his rituals, the appellant told the respondent that the respondent had an omen and that he should leave his wife alone at the appellant ’ s home undergoing treatment and should not return there as the presence of his omen would cause the death of his wife. The respondent complied and left his wife at the appellant ’ s home. Thereafter the respondent used to request his elder brother to take maintenance to his wife at the appellant ’ s home. After six months the respondent, now suspicious, went to the appellant ’ s home; he found his wife taking part in a local dance conducted by the appellant. Married women, it was stated, do not take part in the said dance. When requested to go back to her husband, Mirembe Sato refused, preferring to stay at the appellant ’ s home. The respondent then successfully sued the appellant for damages for enticing the respondent ’ s wife. The Trial Court awarded TZS. 200 000 in damages. The appellant unsuccessfully appealed to the District Court.

336 TANZANIA LAW REPORTS [2002]T.L.R. A- Held: (i) There was ample evidence to show that the appellant did entice the respondent ’ s wife and there was nothing on the record to suggest that the conduct of the respondent justified, or was an excuse for his spouse leaving the matrimonial home; JJ (ii) It is settled that in the absence of misdirection or misapprehension of evidence, an appellate Court should not interfere with concurrent findings of fact of the two Lower Courts; in this case there was no misdirection or misapprehensions of evidence and therefore no justification for interfering with the findings of fact of the two Lower c Courts. (iii) The damages awarded were not so high as to lead to the conclusion that a wrong principle was used in assessing the damages. O Appeal dismissed Statutory provision referred to: 1 Law of Marriage Act 1971, sections 73, 73(1)(2) and 74, 74(1)(2) E JUDGMENT (Delivered 22 November 2000) F Mwita, J.: In 1999 Manyanda Maige instituted a Civil suit at Kahama Urban Primary Court against Bushangila Ng ’ oga claiming damages as a result of the said Bushangila Ng ’ oga enticing or inducing his wife to desert him. The Primary Court entered judgment in favour G of Manyanda Maige and assessed damages at TZS. 200 000. Dissatisfied with the Primary Court ’ s decision Bushangila Ng ’ oga unsuccessfully appealed to Kahama District Court. He has further appealed to this Court. H At the hearing of this appeal both parties appeared and argued the appeal in person. Briefly stated the facts are as follows: j In December, 1998 Manyanda Maige (respondent) took his wife, Mirembe Sato, to a local medicine man called Bushangila Ng ’ oga (appellant) for

BUSHANGILANG ’ OGA v. MANYANDA MAIGE 337 treatment. Having performed his rituals purporting to relate to the treatment of the said Mirembe Sato, the appellant informed the respondent that he. the respondent, had a bad omen and that he should leave his wife alone at the applicant ’ s home undergoing treatment and should not return there as the presence of his omen would cause the death of his wife. The respondent acted upon the appellant ’ s advice and left his wife undergoing the purported treatment at the appellant ’ s home. Thereafter the respondent used to request his elder brother to take maintenance to his wife at the appellant ’ s home. After about six months without his wife returning home, the respondent became suspicious. He went to the applicant ’ s home and found his wife taking part in a local dance conducted by the appellant allegedly aimed at making the respondent ’ s wife refuse to return to him. A number of witnesses saw Mirembe Sato participating in the said dance. According to evidence on record married women do not take part in the said dance. On being requested to go back to her husband ’ s home, Mirembe Sato refused, preferring to stay at the appellant ’ s home. Sections 73 and 74 of the Law of Marriage Act 1971, provide: 73(1) A husband or wife may bring a suit for damages against any person who has, for any reason, enticed or induced his or her spouse to desert him or her. (2) A suit brought under this section shall be dismissed if the defendant satisfies the court that the conduct of the plaintiff has been such as to justify or excuse his or her spouse leaving the matrimonial home. 74( 1) Damages for adultery or enticement shall be in the discretion o f the court but shall not include any exemplary or punitive element. (2) In assessing such damages, the court shall have regard (a) to any relevant custom of the community to which the parties belong. There is ample evidence on record to support findings of fact by the two Lower Courts that the appellant did indeed entice or induce the respondent ’ s wife to desert him. There is nothing on record to

338 TANZANIA LAW REPORTS [2002]T.L.R. A suggest that the conduct of the respondent has been such as to justify or excuse his spouse leaving the matrimonial home. It is a well established rule of practice that in the absence of misdirections or misapprehension of evidence an appellate Court B should not interfere with concurrent findings of fact of two Lower Courts. In the instant matter there are concurrent findings of fact by the Primary and District Court. As there does not appear to be any misdirections or misapprehension of evidence there is no justification c for interfering with the findings of fact of the two Lower Courts. The damages awarded are not so high as to lead to the conclusion that a wrong principle was used in assessing the damage so as to attract interference by this Court. The appeal is accordingly dismissed with costs. SMZ v. MACHANO KHAMIS A LI AND 17 OTHERS COURT OF APPEAL OF TANZANIA i AT ZANZIBAR (Kisanga, Ramadhani and Lugakingira, JJ. A.) CRIMINAL APPLICATION No. 8 OF 2000 G (From the Ruling of the High Court of Zanzibar at Vuga, Tumaka, Deputy C.J., dated 3 April 2000, in Sessions No.7 of 1999) Constitutional Law - Sovereignty - Union of Tanganyika and Zanzibar to form H the United Republic of Tanzania - Whether the constituent parts of the union retained their soverign status. Criminal Law - Treason - Whether the offence of Treason can be committed against the Revolutionary Government of Zanzibar. I