ZACHARIA LUGENDO v SHADRACK LUMILANG'OMBA 1987 TLR 31 (HC)

 

ZACHARIA LUGENDO v SHADRACK LUMILANG'OMBA 1987 TLR 31 (HC)

Court High Court of Tanzania - Mwanza

Judge Mwalusanya J

26th June, 1987

Flynote

Family Law - Adultery - Parties living together under the belief that they are duly married - Presumption of marriage.

Family Law - Damages - For adultery - Whether proof of marriage between parties necessary.

Family Law - Presumption of marriage - Whether can be rebutted if it is proved that the parties had never gone through a ceremony of marriage.

-Headnote

This was a suit filed by appellant, one Zacharia s/o Lugendo against the respondent one Shadrack s/o Lumilang'omba at Magu Primary Court claiming five head of cattle as damages for adultery.

The appellant succeeded at the trial but was unsuccessful at the District Court on the basis that there was no proof of marriage between him and his concubine one Thabita d/o Yakobo.

Held: (i) Where a man and woman live as husband and wife under the belief that they are legally married, their cohabitation amounts to concubinage;

(ii) marriage unlike concubining is a solemn and serious institution. There ought to be evidence of customary law marriage to constitute marriage, such as handing over ceremony by parents of the girl to the boy, or evidence of certain rites recognized by the relevant customary law of that tribe like a festival of pombe or other like ritual - Sec. s. 25 (1) (d) of Law of Marriage Act No. 5 of 1971;

(iii) the presumption of marriage may be rebutted if it can be proved that the parties had never gone through a ceremony of marriage recognized under the law.

Case Information

Appeal dismissed.

Case referred to.

1. Francis s/o Leo v Pascal Simon Magana [1978] L.R.T. No. 22

[zJDz]Judgment

Mwalusanya, J.: This was a suit filed by the appellant Zacharia s/o Lugendo against the respondent Shadrack s/o Lumilang'omba at Magu Primary Court for a claim of five head of cattle as damages for adultery. The appellant succeeded at the trial but was unsuccessful at the District Court and hence this appeal.

I agree with the District Court that there was no proof of marriage between the appellant and the woman Thabitha d/o Yakobo and therefore the suit for damages for adultery H could not stand. The parties were just staying in concubinage. For the benefit of the trial court, marriage is a solemn and serious institution more than mere concubinage. Although s. 41 (a) of the Law of Marriage Act No. 5 of 1971 says that payment of I dowry is not necessary to validate marriage, yet there ought to be evidence of customary law marriage to constitute marriage. For example there ought to be evidence of certain rites recognized by the relevant customary law of that tribe like a festival of pombe or any other ritual - see s. 25(1)(d) of the Law of Marriage Act No. 5 of 1971. But I cannot agree that mere act of enticing a girl to your home and staying with her in concubinage, could constitute marriage. Something more is required for sure!!

The trial court was of the view that s.160 (1) of the Law of Marriage Act created a marriage where a man and woman had cohabited as husband and wife for over two years. He was wrong. Since 1978 this court has clarified as to the meaning of that section, for which see the case of Francis s/o Leo v Paschal Simon Magana: [1978] L.R.T. n. 22 (Mfalila, J.). It was held therein that, the presumption of marriage may be rebutted if it can be proved that the parties had never gone through a ceremony of marriage recognized under the law. In the case at hand the appellant concedes that he never went through any ceremony of marriage with the woman Thabitha d/o Yakobo, and therefore there cannot be any marriage even if they have stayed over two years. It is not the law that staying with a woman for over two years creates a marriage where there was none.

In the event the appeal must fail. The appeal is accordingly dismissed with costs.

Appeal dismissed.

1987 TLR p33

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