ISIDORE NSANGU TUSEVO v.ANNETE ALTVATER AND ANOTHER [2004] TLR 424

Facts

The appellant, a Congolese national, and the first respondent, a German citizen, were married in Guatemala City. The appellant sued the first respondent and one Majid Raza, the second respondent, for general damages and for wrongful detention. alleging in his plaint thatwhen he came to Tanzania in October, 2000 he found his wife cohabiting with the said second respondent. He approached and asked his wife to desist from continuing with the adulterous association to no avail. In his attempt to talk over the matter he went to see the first respondent but instead she called the police who detained him without bail for six consecutive days. The respondents filed two separate written statements of defence. In her defence the first respondent admitted the marriage; that she was a German citizen and that she was residing in Tanzania. She raised two points of preliminary objection: that the appellant had no cause of action against the two respondents because under German law adultery was not actionable, and that the marriage contract barred the relief sought by the appellant. She annexed a duly authenticated copy of the German law and a copy of the marriage contract to her written statement of defence. This was reiterated in the submission in support of the preliminary objections. The advocate of the appellant argued that the question of whether the marriage was governed by German law was a matter of evidence. The trialresident magistrate upheld the preliminary objection on the ground that the appellant was bound by German law and the suit was struck out. Aggrieved the appellant appealed to the High Court on four grounds but argued only one ground challenging the finding of the magistrate that the suit was incompetent because German law was applicable. The advocate of the appellant argued that no evidence had been tendered. He further cited provisions of the Law of Marriage Act 1971 which empower the courts in Tanzania to entertain matters pertaining to marriage notwithstanding that the marriage was contracted outside Tanzania.

Held: (i) German law is a foreign law and its existence must be proved by evidence before any court of law in this country could act on it to determine the rights and liabilities of the parties in and legal proceedings.

(ii) The annexure to the pleading was not legal proof ofthe law.

(iii) Obiter: The Trial court ignored the fact that the appellant had another separate and distinct claim: the claim of damages for wrongful confinement.

Appeal allowed; case remitted for trial