Sekule, J.: The respondent in this appeal successfully sued the appellant in the Igalukilo A Primary Court for five head of cattle as compensation for adultery. The appellant was aggrieved by this decision he appealed to the District Court of Magu District at Magu. Here too he was not successful. He has now preferred an appeal to this Court. B
The case for the respondent in the trial court was that sometime in November, l986, his grandfather died. He left behind a widow and three children.
After the funeral and before the mourning period had ended, members of the deceased's family asked the widow whether she was willing to be inherited as a wife by another C member of her deceased husband's family, and that she consented. Thereafter six men belonging to her late husband's family were brought before her and she chose the respondent as her new husband.
This exercise was witnessed by other people including the widow's own father. The D family of the deceased also settled with the widow's father the issue of a balance of brideprice that the deceased had left unpaid. The respondent then took the widow as his wife to his home where they stayed as a man and wife.
The respondent further contended at the trial that, sometime towards the end of March E 1987, his wife (the widow) told him that she wanted to visit her children. It would appear these children were living with the respondent's father. He allowed her to go and she went. She was expected to go and return on the same day. She never returned. After two days the respondent started looking for her. He found her living with the F appellant at his home. The respondent then reported the matter to a ten cell leader. It was his contention that at the ten cell leader, the appellant agreed in writing to refund the respondent's bride price. This promise was however not honoured by the appellant as a result the respondent had no alternative but to take the matter to court. The ten cell G leader testified as P.W.3 and produced the agreement regarding the return of bride price by the appellant to the respondent which both had signed before him. Unfortunately I have not been able to see this document in the records supplied. The father of the widow testified as P.W.2. He firmly supported the respondent's evidence regarding his H contention that he inherited the widow as his wife with her consent. This is what he stated:
Katika wadaiwa hawa wawili, namfahamu mdai Amos Mutanda ambaye ni mkwilima wangu I na mdaiwa simfahamu
SEKULE J
kabisa na wala sina uhusiano wowote naye. Nakumbuka Mkwilima wangu wa kwanza A aliyekuwa amemuoa binti wangu Sumai aitwaye Masome Nyenge alifariki mnamo tarehe Novemba, 1986 na kumkabidhi mjane binti yangu. Baada ya matanga mdai ndiye alichaguliwa na binti wangu kuwa mumewe wa urithi. Hivyo mimi nafahamu mume wa binti ni B mdai. Marehemu mkwilima wangu wa kwanza alipofariki alikuwa na deni la mahari - ng'ombe wanne na hivyo binti wangu aliporithiwa na mdai aliahidi kunilipa baki ya mahari mwezi huu - Mei 1987. C
The appellant contended in his defence that on the 29th March 1987 he met the respondent's wife at a market. He approached her and told her that he was in love with her. She agreed and he took her to his home. He further claimed that before that he had asked her whether she was a married woman and she replied in the negative. She D however told him that her first husband was dead and that she was living with her relatives. He did not however ask her whether she had formally parted with her deceased husband's family. At the hearing of this appeal, the appellant and the respondents appeared in person. E
In addition to what he stated in his memorandum of appeal, the appellant contended that the woman in question was not inherited as a wife by the respondent.
I have carefully considered the evidence on record, and I am of the opinion that there F was ample evidence to the effect that the widow was inherited as a wife by the respondent upon the death of her husband. And this was done with her consent. There could not be better evidence in my view on this point than that of the widow's own father, P.W.2. P.W.2's evidence to the effect that his daughter agreed to be inherited as G a wife by relatives of her deceased husband and that she on her own accord chose the respondent as her new husband appeared to have been given in a firm and straight forward manner. And further P.W.2 could not have lied against his own daughter. Like the trial court, I am also of the view that the evidence of this witness was nothing but the truth. H
As a matter of fact, it would appear that the woman's denial to have been inherited as a wife by the respondent was half hearted. For instance she agreed in cross examination that she was visiting the home of the respondent and that it was the respondent who was paying her development tax after the death of her husband. She further stated that after I the death of her husband, she was not formally
SEKULE J
divorced, meaning I suppose that she had not formally parted with her deceased A husband's family. And that in these circumstances therefore she was committing adultery with the appellant.
It is obvious from this account in my view that the widow was simply trying to deny a fact that she knew was the truth or the correct position. Her evidence particularly in B cross examination essentially supported the respondent's testimony to the effect that he had inherited her as a wife. For example, how come did the respondent assume the responsibility of paying her development tax after the death of her husband if he had not inherited her as his wife. C
On the evidence, I am satisfied in my mind that the widow was duly inherited as a wife by the respondent with her consent. And according to paragraph 64 of the Customary Law Declaration Order, GN 279 of 1963 and as rightly pointed out by the trial court, after the widow was inherited with her consent she became the lawful wife of the D respondent. Paragraph 64 reads:
Kama mjane anakubali kuishi kama mke wa mmoja wa ndugu wa marehemu na shauri likakubaliwa na baraza la ukoo, basi anakuwa mke halali wa ndugu yule. E
Further, from the evidence on record, I am of the settled opinion that the appellant was rightly found by the two lower courts to be liable for adultery in this case. According to the appellant's own testimony the widow told him that her husband was dead. And that F he did not however bother to ask her whether or not she had formally parted with her deceased husband's family. In my view the appellant had a duty to carry out adequate inquiry to ascertain and to satisfy himself that the widow was indeed a free woman before taking her to his home as his wife. Paragraph 129 of the Customary Law G Declaration Order, GN 279 is relevant in this connection. Paragraph 129 reads:
Ni wajibu wa mwanamume kupata uhakika kwamba mwanamke anayetembea naye au H anayemwoa hana mume. Usemi wowote wa mwanamke hata kama akiutoa mbele ya mashahidi hauwezi kuwa ngao kama mwanamume akishitakiwa ugoni.
It is thus evident from this paragraph that a man has considerable burden to discharge I before deciding to have an affair or getting
married to a woman whose marital status he does not know before hand. A
In this case and going by the appellant's evidence at the trial, the widow's statement to him when they met to the effect that her husband was dead should have put him on B notice for him to make the necessary inquiries to ascertain her true marital status. He does not seem to have done so. He was indifferent.
In these circumstances therefore he was correctly found to be liable for adultery.
I am thus satisfied that the appellant's appeal on the issue of adultery is devoid of merits, C and it is hereby dismissed.
On the issue of quantum of compensation/damages; the respondent claimed five head of cattle and he was so granted by the lower courts. On my part and after considering the circumstances of the case, particularly the fact that the appellant does not appear to have D enticed or taken the widow right from her new matrimonial home but that he met her at a market and that there was no evidence adduced to challenge the appellant's claim in this regard, I am of the view that two (2) head of cattle as damages for adultery would meet the ends of justice in this case.
I would and do hereby therefore set aside the trial courts order of compensation and E substitute therefor an order to the effect that the appellant pays the respondent, two (2) head of cattle as compensation/damages for adultery. It is so ordered.
To this limited extent the appeal succeeds. Otherwise it is dismissed. Each party to bear F his own costs for this appeal.
Order accordingly.
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