D'Souza, Ag. J.: This is an appeal arising from Dodoma District Court Civil Case No. G 58 of 1982. The appellants Juma Misanya and Moleni Masululu were the first and second defendants respectively in that case. The respondent Lister Ndurumai was the plaintiff. In the plaint the respondent alleged that he is a teacher resident at Handali Primary School, Dodoma and that the 1st appellant is a Rural Medical Aid and the 2nd H appellant is a Ward Attendant at Chiboli Dispensary, Dodoma. The respondent and the 2nd appellant were husband and wife and the 1st appellant started 'poaching' and on 9.6.82 were caught in flagrante delicto. The 1st appellant paid compensation of Shs. 1,000/= and undertook to stop his association with the respondent's wife. However, I instead of desisting the 1st appellant went through a ceremony of marriage with the 2nd appellant under Islamic
D'SOUZA Ag J
rites and continued to live with and commit adultery with 2nd appellant. In paragraph 8 A of the plaint the respondent claimed Shs. 5,000/= for "pain of mind, credit and reputation". In paragraph 10 he put the value of the claim at Shs. 10,000/=. Finally at the end, the plaint is as follows:
Therefore, the plaintiff prays the Honourable Court to enter judgment and decree in his favour B as follows:
(a) Shs. 5,000/= for adultery
(b) Shs. 5,000/= for special damage
(c) Costs of the suit C
(d) Mesne profits of Shs. 1,000/= every month for adultery from the date of filing this suit till divorce is granted between the plaintiff and 2nd defendant.
(e) Any other relief as the honourable court will think fit to make. D
On 20.1.83 both parties appeared before the Senior Resident Magistrate at Dodoma. The two appellants stated that they had been served with plaint only the previous day and required time to file their defence to the plaint. They were granted until 10.2.83 to E do so. On 10.2.83 both parties appeared before the court. The appellants stated that they had not filed their written statement of defence because they had failed to understand the plaint. They were given time until 23.2.83. The case was fixed for mention on 24.2.83. On that date the appellants failed to turn up in court or to file a F defence and the court ordered that the matter proceed ex-parte. On 19.5.83 the court entered judgment for the plaintiff as prayed on the basis of an affidavit filed by him and which affidavit was an almost verbatim repetition of the facts alleged in the plaint.
On 23.9.83 the District Court Dodoma, presided over by one of the resident magistrates, ruled on the appellants' application to have the ex-parte judgment set aside. G The court rejected the application because the court was not satisfied that the applicants had been prevented by illness from attending court. The court noted the absence of any medical evidence on the issue.
The appellants then appealed to this court. Mr. Mbezi, counsel for the appellants H attacked the ruling of the District Court refusing to set aside the ex-parte judgment and he also questioned the merits of the judgment itself. The respondent was served to appear for the hearing of this appeal but failed to turn up, and the matter proceeded in his absence.
Mr. Mbezi's main ground for challenging the ruling of the District Court was that the I court ought to have accepted the affidavits of the applicants/
D'SOUZA Ag J
appellants as the same were unchallenged. The record does not show that the A respondent was told of his right to file a counter affidavit. It is not possible therefore to assume that the mere non-challenge of the affidavits amounted to admission of its contents. This is particularly so because the respondent was not represented by counsel.
However, this court is of the opinion that whether an affidavit is challenged or not it is still B the duty of the court to weigh all the circumstances of the case, including the law on the matter, and to decide whether to allow the application.
Although the court which passed the ex-parte judgment did not say so expressly it is C clear from the record that the court entered the ex-parte judgment because of the failure of the defendants to present a written statement of defence under 0.8, r.14 of the Civil Procedure Code. Where ex-parte judgment is entered for non-appearance under order 9, r.13, the same provides for application to be made to set aside the ex-parte D judgment. However no similar provision exists for setting aside judgments entered for default of filing a written statement of defence. The chamber application filed in the District Court does not state under what provision it is made. Under Order 40, r. 4(1)(b) the aggrieved party may appeal to the High Court against an order under r. 14 of E Order 8 pronouncing judgment against a party. For this reason this court finds that the application before the District Court was misconceived. Section 95 of the Civil Procedure Code cannot be invoked to assist because the defendants were given a specific right of appeal.
The ex-parte judgment was passed on 23.9.83. The appeal to this court was filed on F 23rd November, 1983 well before the time allowed for appeals from decisions of the District Court made in its original civil jurisdiction. I am also of the opinion that the fact that the appellant pursued a wrong remedy - i.e. applying to the District Court to set aside the judgment - did not deprive him or them of their right to appeal against the G decision of the lower court entering judgment in default of filing a written statement of defence and against the decision on its merits.
Mr. Mbezi argued that the District Court acted erroneously in entering judgment in default of filing a written statement of defence. The record shows that the appellants were granted two extensions for filing their defence but appear to have dragged their H feet. Their allegations of illness was not supported by medical evidence and as both of them worked in a hospital this was rather strange.
It is on the merits of the District Court's judgment that Mr. Mbezi for the appellants stands on better grounds. The plaint included a claim for special damages in the sum of I Shs. 5,000/= and another head rather amusingly termed "mesne profits" of Shs. 1,000/= per month from date
D'SOUZA Ag J
of filing the suit to such time as divorce is granted. These were in addition to the general A damages of Shs. 5,000/= claimed. All these were allowed by the court as prayed. By 27th October, 1983, when the decree holder filed application for execution, because of the running damages termed "mesne profits", the decretal amount, excluding costs had reached Shs. 22,000/=. By not filing divorce proceedings or by delaying the same, B presumably the decree holder could eventually execute for an enormous amount of money out of all proportion to the wrong suffered by him.
Damages for adultery are awarded on the principle that they are to be by way of compensation for the husband's loss and injury, and not by way of punishment of the adulterer for his misconduct. In assessing these damages both the material loss and C moral loss are taken into account. On the material side the husband could prove for example the cost of keeping a nanny to look after children left behind by the wife. The injury to the husband's feelings and family pride and loss of companionship must be taken into account on the moral side. The material loss, termed special damages, must D be proved in evidence. The other, or general damages are assessed by the court considering all the circumstances of the case.
In this case there was no evidence at all to prove special damages. The "mesne profits" were also unjustified in law and were not a head of damage allowed in adultery cases. If E anything they were punitive.
The court accordingly allows this appeal to the extent of setting aside the award of Shs. 5,000/= special damages, and Shs. 1,000/= per month running damages. F
The award of Shs. 5,000/= general damages, which appears reasonable in the circumstances, is left undisturbed. Each party is to bear his own costs in this appeal as the appeal was only partly allowed.
G Order accordingly.
A