Court name
High Court of Tanzania

John Kahamila vs Paschal Jonathan & Hilda Hosia () [1985] TZHC 32 (19 October 1985);

Law report citations
1986 TLR 104 (TZHC)
Media neutral citation
[1985] TZHC 32
Coram
Mwalusanya, J.

Mwalusanya, J.: This is a second appeal.  In both courts below appellant John Kahamila lost.  He   H was claiming shs. 800/= as damages for adultery from the 1st respondent Paschal s/o Jonathan.  If he had sought the services of a lawyer no doubt he would not have been caught wrong footed as it were in that both the suit and the appeals were misconceived.  This again underscores the importance of legal services in our society and I am at a loss for   I those characters who hold the lawyers in contempt.  For example in

A the 17th century England William Shakespeare (1564 - 1616) in Henry VI Part 11 - Scene IV had prayed that:
   'The first thing we do, let us kill all the lawyers'.
B And yet another English novelist John Gray (1685 - 1732) in his 'The Beggar's Opera 1 Chap. ... did not spare the lawyers when he said:
   'A fox may steal your hens, Sir, If lawyers' hand is fee'd, Sir, He steals your whole estate'.  C
But I think the bitterest criticism was that unleashed by a citizen of England to his 'monarch' Cromwell when he said of lawyers:  D
   '------ lying lawyers whose heads are full of mischief and their pens dipped in gall and wormwood; their teeth as swords and spears, and their throats open sepulchers, to devour and swallow up the poor and needy from amongst men'.
E And yet another has attempted with sarcasm to define as who is a lawyer.  He is Ambrose Bierce in the 'The Devil's Dictionary' by Doubleday & Co. Inc. Delphin Books at p. 118.:
   'Lawyer - one skilled in circumvention of the law' F
And as if that was not enough there is a classical joke on lawyers that a typical textbook for every law student has the following chapters:
G       Page  1 - 10 (Chap.1) :    Libel laws.
      Page 11 - 24 Chap.2 :    Divorce Laws.
      Page 25 - 36 Chap.3:    Criminal Laws.
      Page 37 - 500 Chap. 4 :    Loopholes
H But I am satisfied that the picture of a lawyer is wrong.  Those who think that way are misguided.  Lawyers play a very useful role in society.  We read in Boswell: 'Life of Johnson' Vol. 5 pp. 28 - 29; also quoted in Soonavala: 'Advocacy' 2nd Edn. at p. 921:
I    'As it rarely happens that a man is fit to plead his own cause,

A    lawyers are a class of the community, who, by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue that the law has to settle. A lawyer is to do for his client all his client might fairly do for himself, if he could.  If by superiority of attention, of knowledge, of skill and a better method of communication, he has the advantage to which B he is entitled'.
And we have an incisive commentary from that eminent English lawyer Lord Denning M.R. in Pett v Greyhound   C Racing Association Ltd: [1969] 1 Q) 1 Q.B.125 at p.13:
   'It is not every man who has the ability to defend himself on his own.  He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue - tied or nervous, confused or wanting in intelligence.  He cannot examine or cross D - examine witnesses.  We see it every day. A magistrate says to a man: 'You can ask any question you like'; whereupon the man immediately starts to make a speech. If justice is to be, he ought to have the help of someone to speak for him.  And who better E than a lawyer who has been trained for the task?  I should have thought, therefore, that when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth.  He also has a right to speak by counsel'.
F I associate myself with these views that lawyers play a very useful part in society.  And as I said earlier if appellant in this appeal had sought lawyer's advice, this suit would not have been filed in the first place.
G This was a suit for a claim of damages for adultery.  Appellant had contracted a Christian marriage on 12/8/1973 at Kashasha Lutheran Church in Kagera Region.  But under s.75 of the Law of Marriage Act No. 5 of 1971 a Primary Court shall have jurisdiction to entertain a suit for a claim of damages for adultery, where the parties were married in   H accordance with the customary law or Islamic law.  If the parties contracted a civil marriage or Christian marriage then they have to file a suit for claim of damages for adultery at the District Court.  So it is obvious in this case that appellant filed the suit at the wrong forum.  For that reason the appeal fails.
I There is another misapprehension which I must set straight for the benefit of the parties.  The trial court and the respondents

A harbour the impression that a marriage may be dissolved by long separation of the spouses.  That is wrong.  A marriage may only be dissolved by a court of law - s.107 of the Law of Marriage Act No. 5/1971.  As the position stands in this case the 2nd respondent is still the wife of the appellant  until their marriage is dissolved by a court of law.  If   B she persists to cohabit with the 1st respondent without divorcing the former husband, 1st respondent will be definitely liable in damages for adultery.
Be that as it may, for the reasons I have attempted to set out above, this appeal is dismissed with costs  C
Appeal dismissed.
D