Tresspasser To The Marriage

TRESSPASSER TO THE
MARRIAGE.
By: DAUDI MWAKAPIMBA (LLB).
1. INTERPRETATION.
The words trespasser and Marriage are not unfamiliar to you as It has
been defined by various Authorities and scholars in the legal field.
a) Trespasser means a person who unlawful interferes with another

person or his property or rights.
b) Marriage is defined under s 9(1) of the Law of marriage Act1 as a
voluntary union between a man and a woman intended to last for
their joint lives.
Therefore Trespasser to the Marriage Refers to the one who unlawful

interferes another’s person Marriage Legally known as “Adulterer”.
2. PROOF OF ADULTERY.
ADULTERY Refers to the Sexual intercourse between one party who is not
married to and another who is married.2
According to section 72(1) of the Law of Marriage Act, 3Provides inter alia
that:
1
Cap 29 R:E 2019
2
jenita d/o hinjura and marko s/o mpolenkile vs steven s/o kalenge lubezagi (dc) civil appeal no.1 of 2022 hc
kigoma (unreported). Pg 14.
“A husband or wife may bring a suit for damages against
any person with whom his or her spouse has committed adultery”
It is a trite law that; once a Marriage is contacted by a person, it gives that

person the status of being a husband or a Wife. Marriage contract confers
on the parties the status of husband and wife, the essence of the contract
being an agreement between a man and a woman to live together and to
love one another as husband and wife to the exclusion of all others. One of
the Right to be enjoyed by a man and woman who have contracted a
Marriage is Right to sexual intercourse to the exclusion of all others.
Therefore anyone who shall have sexual intercourse with a man or a

woman who is not legally married to him or her commits Adultery.
Adultery may be proved by the following;
i. Penetration is enough to prove adultery. But in England there is

a great legal laws that even shaking hands is not allowed since
it amounts to adultery to some extent. This is because in
England they are governed by law each and every thing.
ii. Fraglent delito (when caught doing the action) during or
immediate after the act.
iii. Pregnancy by another man.
iv. Communicable diseases, sexual transmitted diseases, venereal
diseases
3
Cap 29 R:E 2019
FACTS TO BE ESTABLISHED BY THE CLAIMNANT TO PROVE THE
SUIT.
A. That, there was lawful Contracted Marriage.

Therefore, here the claimnant is required to produce evidence which
support that, there was Marriage such us production of certificate of
Marriage or otherwise as provided by the Law of Marriage which will
enable him or her to prove that there was Marriage.4
B. That, the Adulterer was aware concerning the existence of Marriage.
C. That, the Adulterer was caught doing the action(Fraglent delito)
D. That, the Adulterer was the one who caused pregnancy to a wife.
E. Any other fact which will connect the Adulterer with an offence.
3. PARTIES TO THE SUIT.
The Action for Adultery is supposed to be initiated against the Adulterer in

a court of law however there are some of people who contradict this.
According to section 72(1) of the Law of Marriage Act, 5Provides inter alia
that:
“A husband or wife may bring a suit for damages against

any person with whom his or her spouse has committed adultery”
The words “against any person with whom his or her spouse has
committed adultery” Used under section 72 (1) of the Law of Marriage
4
edulai springi @ chaula vs rehema william @ mandowa pc civil appeal no. 7 of 2021
5
Cap 29 R:E 2019
Act , means it is the third party who interferes with the Marriage and the
Action for Adultery must be brought against him in a court of Law.6
Therefore the parties in Action for Adultery are the One who claim (it may
be a husband or a wife) versus an Adulterer, who is a third party to the
Marriage and not otherwise.
The actions for Adultery are brought against the third party only.
4. CESSATION OF CONJUGAL RIGHTS.
In Marriage contract, Conjugal rights cease after the Marriage is absolutely

dissolved.
In the case of Musa Mwalugala vs Ndeshe Hota7 as quoted in the case

of jenita d/o hinjura and marko s/o mpolenkile vs steven s/o kalenge
lubezagi (dc) civil appeal no.1 of 2022 hc kigoma (unreported), it was held
that;
“A man’s right to have sexual intercourse with a woman who had

been his wife in the past ends with dissolution of his Marriage to her; by
6
jenita d/o hinjura and marko s/o mpolenkile vs steven s/o kalenge lubezagi (dc) civil appeal no.1 of 2022 hc
kigoma (unreported). Pg 9 and 10
7
[1998] TLR 1
having sexual intercourse with the woman after the dissolution of
the Marriage with her, and after she had re-married the
respondent , the appellant committed Adultery.”
This means that, once the Marriage is dissolved by the court and the other
party to the dissolved marriage gets into other Marriage, the act of having
sexual intercourse with that married person amounts to Adultery.
ONLY COURTS OF LAW CAN DISSOLVE A LAWFULLY

CONTRACTED MARRIAGE.
In the case of Dadi Said Kwanga vs Nurdin Akachapa8, It was stated that;
“Although issuance of talak is evidence that the Marriage has

broken down, it does not amount to a dissolution of Such Marriage, Under
the Law of Marriage Act, Only courts of Law can dissolve a lawfully
contracted Marriage; in absence of Such a divorce decree in this case
the marriage between the respondent and joane was still in
existence and so anybody having affairs with her commits
adultery.”
Therefore if there is no a divorce decree between the parties who lawfully

contracted marriage, and so anybody having sexual intercourse with one of
the party, that person commits Adultery.
8
[1999] TLR 398
5. DEFENCES AVAILABLE TO TRESPASSER.
Under subsection (2) of section 72 of the law of Marriage Act 9 ,
however, such proceedings ‘may be dismissed if the defendant
satisfied the court that he or she did not know and could not, by
the exercise of reasonable diligence, have known that the person
with whom he or she committed the act of adultery was married.
6. JURSDICTION OF PRIMARY COURTS.
Jurisdiction of the court refers to the power of the court to hear and
determine matters before it. It is paramount importance that a court faced
with a matter to adjudicate upon it should, at first, determine its mandate
to hear and determine the matter before it, if satisfied that it has mandate,
it can proceed, otherwise it should refrain from adjudicating on it by
rejecting.10
The issue of jurisdiction is a creature of statute. The power vested to a

court or quasi-judicial body to hear and determine a matter is legislative in
character. Parties cannot confer jurisdiction to the court which it does not
possess, as it is a trite position of law that, parties cannot consent to give a
certain court, body or tribunal power to decide a matter since that is the
exclusive mandate of the statute.11
9
CAP 29 R:E 2019
10
Kasimba Aman Simba vs republic criminal Appeal no. 378 of 2021.
11
PRIMARY COURTS JURSDICTIONS.
Section 75 of the Law of Marriage Act which gives jurisdiction to the

primary court to hear and determine the matter if the parties are married
under Islamic form, the section provides that;
“A primary court shall have jurisdiction to entertain a suit under

this Part where the parties were married in accordance with
customary law or in Islamic form or in the case of a suit under
section 69 or section 71, if the court is satisfied that had the
parties proceeded to marry they would have married in
accordance with customary or in Islamic form."
the Court of Appeal in the case of Wilson Andrew v Stanley John

Lugwisha & Tatu Joseph, Civil Appeal No 226 of 2017 (unreported)
where it was pointed out that;
"The jurisdiction of the primary court to entertain claims of damages for

adultery where there is no petition of divorce against any person with
whom his or her spouse has committed adultery are provided under Part V
of the LMA which deals with Miscellaneous Rights of Action..."
Since there is no petition for divorce, the suit filed by the respondent
cannot in either way be considered as a matrimonial proceeding for it to be
covered under Part VI of the Law of Marriage Act, Cap 29 R.E 2019 to give
jurisdiction of the trial court (District Court) which enjoyed the concurrent
jurisdiction with the Primary Court and High Court on the matter covered
under Part VI of the said law.

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TRESSPASSER TO THE

a) Trespasser means a person who unlawful interferes with another

Therefore Trespasser to the Marriage Refers to the one who unlawful

It is a trite law that; once a Marriage is contacted by a person, it gives that

Therefore anyone who shall have sexual intercourse with a man or a

Adultery may be proved by the following;

i. Penetration is enough to prove adultery. But in England there is

A. That, there was lawful Contracted Marriage.

3. PARTIES TO THE SUIT.

The Action for Adultery is supposed to be initiated against the Adulterer in

“A husband or wife may bring a suit for damages against

4. CESSATION OF CONJUGAL RIGHTS.

In Marriage contract, Conjugal rights cease after the Marriage is absolutely

In the case of Musa Mwalugala vs Ndeshe Hota7 as quoted in the case

“A man’s right to have sexual intercourse with a woman who had

ONLY COURTS OF LAW CAN DISSOLVE A LAWFULLY

“Although issuance of talak is evidence that the Marriage has

Therefore if there is no a divorce decree between the parties who lawfully

The issue of jurisdiction is a creature of statute. The power vested to a

Section 75 of the Law of Marriage Act which gives jurisdiction to the

“A primary court shall have jurisdiction to entertain a suit under

the Court of Appeal in the case of Wilson Andrew v Stanley John

"The jurisdiction of the primary court to entertain claims of damages for

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