Beison Mwakipesile vs Abson Mwangalaba (DC Civil Appeal No. 14 of 1984) [1988] TZHC 725 (3 August 1988)

:ç IN THE HIGH OF. TANZANIA AT MBEYA 1 (DC) CIVIL'APAL NO.14 OF 1984 S: (Fran the 6ecision of the District Court of Mboya Distriot at PAbeya in Cvi1 Case No 0 51 of 1981 Before: P.M.B Matoru, Resident Maistrai) BSQN 7AKIPSILE ; :- -. I :.: : :: ::: LLAVT

• versus &8ON V.MflAIABJ ::: :&V S S SS S S 2Q4

Tha. is an ai against the dociion of ti'ic strict Coi 9IVIb?ya awarding the resondont shifling twenty ousand (2O9o4) r aq damages for in and sufferini resullang from a -upposed u.1aw±\tI asaau1t by tho ae1lant on the rosponden'e ( .- The tndisputec. facts of the 'so which w 1otorci t1fe tower eourt are-i that the ape1lnt and one Mwamsfu 1ndotj were husband •_(( L _5• nd wise, althoughat the time of the trial o the case they wero 'a1ready daorcocI ]ux'i±ig the early night of 10th 56ptemb.r 1581 S thç respondent was in the hcuse Wç IUCh ws oeoipodby tJ- wfo of thq appellant an1 the ape11ant found t DC th& he 'esponden-t claimed he had boon rep i'ing a riô or Marnaifu, at her roqes The appgllant on the other hand c1aitd ho saw K 55••5•• S• • 0 5. •0 S the ospondont having sex with Marisifu in the bao'oorn of the house. The respondent was injured by the appol + a lannd the pe)a1it a1so sustained i4juries, Subsequently : the appellant va pcutod for the offence of unlawful ounding th respondent bul was acquitted. He was then sued by the 'espndent for damages The appellant couxier—olaiied for daao too, The tri oir 1' S

• 55 •5 . -S -

• 2 - found. that aJ.thouh the1int h04 ba 3aulte4 U. tb• - p&tiff (noc rss p onci,3 rt t Who - was Aftually badly assaulted b. the dfnant (now the appellant) and his. ganS oi thz mare supioioa that be had been &isi o,cual intezcourso with the d,efendan'a w4 Mamft',, In effect the trial cburt fod that the Appellant had been lha agrossor and that his assault f the rospcndeirV was unju.s-bified and was based on more sustcion of.adultery, Tipis finding by the court was the exact • opposite of a findi,ng o . -bho iruin1 court whe copy of judnont was produced in co during th e tr&al of the suit as an xhibi't. The cr1riinaLcou$ found as fact that the ra.pondcn had boon caught inflarn delic t o, , tornmt-+ng ad.ultery with the appollant's wife, and that in ad4bon the apondt..inttida 'fIght. aRainst the, apeUan • provok ~ ng the appellant to retaliat in golf dofbnce. 1. t113t It haq boon argued by ounsol for the a)pollantLtho lower erod in not foUowing the fin dingb- fThbt of thi3 crirninal case a zveralcd i -i the copy of 3udent wIuh was an exhibit in the •1VLI trialii On tho othor hand, both the loarno rosidont haistrate who tried thc civil suit and loariodcnäl for th iesondent: a on the viow that the judiont Iin*. the crimal tria1..v Neither SidQ cited any authority in s upport of 1u eunisSt On. - -, • Relevancy of udent in subsequent udiial proeoqdings

• '', -- . .-. y SS_-. • provided for zn Part VII of the Evidence Act, 9Soctorf 42 a - -- of the ct dcal c1.th the rolovan of pro1z1ou 3udgrnents as a br.

• • 5 •- S - - \ 1, to a second suit or trial. ScctlQn 43 deals with the relevancy of

certain jud g.i onts in roba1e, natrrnonial, aLura:L. or lnsolTenoy urisdition. Socn 43I provido that a final jttdcnt in criminal p±ocbodings which,do . lb,arbz : any pJdrson to be guilty . of -A '- -S criminal offence shall, after o t1 ex 5- piry of -the time for ap)oal, be takdn as eonclusvc cvidonco that the porzon so convicted was guilti

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,tt offonco Seoton 44 proda.tha jud.ers; rs, btc other.than those provided for in.Sn.Qn 43aoroLT;-ant only if they relate to matters of a public na ture ,-.but.. a r e n at rondlusivo proof of that which they state, .• 0 No.w Section 45 states that Judgments, 0rLirs, etcothe' than those mentioned in sections 42, 43,. 43A and. 44 are irrelevant un1os the existnce of such judgment, order, ctc ic in Lssuc or i s *eevant nder sorme.,-other , piovision of th Ei den . ca Act, 1967: (Viyudexliniii.g for emphasis). The judgment in the Crniina1 case in which the i'eapondent wa ound to be the aggressor and, had comiriitted• the appellant does not appear to cone under any of hc ohions aS the Evidence Act to which I. 1aye briefly referred bove. The mgttrato trying the cIvl suit was thore fore not buid to follow it . 0 The trial nagistrat in the ci1 st eonsico the odflce whieh was given before him and came to his own concliisiorchn the whole, was not unreasonable. Some of the witnos: w}" diig the crininal trial did not testify during thc trial of the iviJ.. oase and that nay have accounted fo± the diffe—ences in the findings of the criminal ancivil..casos I an not, herefore, inined to dfor ih thc findig of tli.: court boiov that the appellant was the aggessor. Was. the award of shillings 20,000/= as damages to the repone excessive in the circumstances? There is hardly any doubt tiat whether or not the respondent really coimittd adultoywith th..o wife of the appellant on the night of 10th September, 1981, the circumstances in whiôh he was found with the wife of the appellant were highly SUSC'U5e It is possible that the appellthit and hi\s wzfe were not then living together and their rolot.t.nship may havr beon

strained, but they were novortho1css still husband and wise ax tho,ro had not been any judicial sG,a!atione Even if they were dicaJ.y separated, which was not the case, the wife would not be free to take in any man of her choico, oction lii. of the law of Nar.tae of Aô,1971.which dols with the offootLa 000 of judicial soparattom provides that the decree merely, relievc : thoprtio of the dut3' to cohabit and to render each other help and cor anionship and $.e duty o nairtoin each other but cbes not dissolve their narital gtatqs o Only after the narital status has boon dissolved is oiJo part' free.to take in any other partner,,. 3oälthot.gh the appeIa was not entitled to assault the respondent on mer6 suspiciono adu1t71tho rospond.dnt hi.rnsolf. was not b1amolos. The ttiàl oo therooro, in my view, erred in granting th±espondont the full ur4aSQ he claimed as thouh he was a wholly innocent porson, 1 quash and sot aside the quantum, of damros awarded an'dthp stituto thereof the norurial dauacs of shillings five thouaaun4 'Shs.500,1=). only, This appeal is therefore pa±'tial1y allowed to the o.*txl' above and the appollant is to Sot of the costs here nd {n the trial/court.

1.1). IiIrosQ At M1oya JUDGE 3/8/8 - - Mr. Mwanolo for Appellant Mr. Mwakilasa for Respondent.