DANIEL MASALU v MUSSA SHADRACK 1987 TLR 35 (HC)

 

DANIEL MASALU v MUSSA SHADRACK 1987 TLR 35 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

2 July 1987

Flynote

Customary Law - Adultery - Bride price - Marriage - Sukuma customs and rites - S.25(2)(d) B Law of Marriage Act, 1971.

-Headnote

The appellant is appealing against the decision of lower courts in not awarding him damages. The appellant claims damages of 5 head of cattle for adultery against the respondent. He contends that he had paid 10,000/= as bride price and had waited to contract marriage. On his return from Geita, he found the woman already married to the respondent.

Held: (i) Marriage under Sukuma customary law rites, involves handing over of a woman as a wife according to the rites stipulated under s.25(5)(d) of the Law of Marriage Act, 1971;

(ii) respondent had a powerful defense against the accusation of adultery because when he married the woman he did not know, nor could he have known even by exercise of reasonable diligence that she was married in accordance with s.72(2) of the Law of Marriage Act, 1971.

Case Information

Appeal dismissed. F

No case referred to.

Judgment

Mwalusanya, J.: The appellant Daniel s/o Masalu lost in the suit in which he claimed damages of five head of cattle for adultery against the respondent Mussa s/o Shadrack. It was at Magu Urban Primary Court. The appeal to the Magu District Court was equally unsuccessful hence this appeal.

Like the two courts below I find that this appeal is bankrupt of merit. First as held by the trial court there was no evidence of customary law marriage. According to the testimony of the appellant himself after he had paid bride price of Shs. 10,000/= he waited to contract the marriage when he returned from Geita. However when he returned from Geita he found the woman already married to the respondent. The payment of Shs. 10,000/- as bride price by the appellant for sure did not constitute marriage. Marriage would have taken place only if appellant was handed over the woman as wife according to the Sukuma Customary Law rites as stipulated under s.25 (5) (d) of the Law of Marriage Act No. 5 of 1971. Otherwise as things stand, no marriage of any kind whatsoever was contracted. Secondly as the District Court held, the respondent had a powerful defense provided under s.72(2) of the Law of Marriage Act because when he married the woman he did not know nor could he have known even by exercise of reasonable diligence that the woman in question was married. The parents of the woman he wanted to marry said she was unmarried. What else could he have done?

In the event this appeal is dismissed with costs. Order accordingly.

Appeal dismissed.

1987 TLR p36