JOHN KIRAKWE v IDDI SIKO 1989 TLR 215 (HC)

 

JOHN KIRAKWE v IDDI SIKO 1989 TLR 215 (HC)

Court High Court of Tanzania- Mwanza

Judge Mwalusanya J

9 November, 1989

Flynote

Family Law - Kuria customary marriage - Marriage contracted by elopement -

Whether it is a B legal marriage.

Family Law - Presumption of marriage - Elements.

Customary Law - Kuria customary marriage - Marriage by elopement - Whether a

legal marriage. C

-Headnote

On 8/10/1986 the respondent's son eloped with the daughter of the appellant. On

23/8/1988 the appellant with some elders went to the respondent's home for

negotiation D about the bride price payable. There was evidence that the respondent

collected his own elders for the bargain. It was eventually agreed that the bride price

payable be 12 head of cattle, two goats and cash shs.2,650/=. The respondent agreed to

pay six head of cattle and cash shs.2,650/= on the spot as his first instalment. However

he changed his mind later. The appellant successfully sued the respondent at Shirati

Primary Court in Tarime District in a claim for payment of the agreed bride price.

The Primary Court E found as a fact that the respondent's son had married the

appellant's daughter and so the respondent was obliged to pay bride price as agreed.

On appeal, by the respondent, the District Court of Tarime held that there was no F

marriage between the respondent's son and the appellant's daughter and so the

question of payment of bride price did not arise. In addition, even if there was a

marriage, no order for payment of bride price could issue as the parties had never

agreed on the amount of bride price payable. The appellant appealed to the High

Court. G

Held: (i) That under Kuria customary law marriages contracted by elopement are

recognized;

(ii) the fact that the respondent's son and the appellant's daughter had lived H

together for over two years as husband and wife raised the presumption of marriage

which the respondent had failed to rebut;

(iii) to constitute a presumption of marriage three elements are necessary.

(a) that the parties have cohabited for over two years; I

1989 TLR p216

MWALUSANYA J

(b) that the parties have acquired the reputation of husband and

wife; A

(c) that there was no formal marriage ceremony between said

couple.

Case Information

Appeal allowed. B

[zJDz]Judgment

Mwalusanya, J.: The appellant John s/o Kirakwe successfully sued the respondent Idd

s/o Siko at Shirati Primary Court in Tarime District in a claim of payment of

brideprice C amounting to 12 head of cattle, two goats and cash shs.2,650/=. The trial

court found as a fact that the respondent's son had married the appellant's daughter,

and so the respondent was obliged to pay the brideprice that was earlier agreed upon

by the two parties. the respondent appealed to Tarime District Court and was

successful and hence D this appeal by the appellant.

The District Court of Tarime held that there was no marriage between the

respondent's son and the appellant's daughter and so the question of payment of

brideprice could not arise. And the learned District Magistrate further argued that

even if there was marriage, E no order for payment of brideprice could issue from

the Court as the parties had never agreed upon as to the amount of the payable

brideprice.

In my judgment I find that the District Court was wrong on both points. Concerning

as to whether the parties had agreed upon the amount of the brideprice payable, I

find that the F trial court was right that the parties had on 23/8/1988 clinched a deal

as to the amount of brideprice payable. Evidence was adduced at the trial that on that

date, the appellant with some elders who included Mr. Francis s/o Kirakwi (PW.2),

Shabani s/o Lukonge G (PW.3) and Juma s/o Kiraka (PW.4) went to the respondent's

home for negotiations about the payable brideprice. It is said the respondent collected

his own elders. It was eventually agreed that the payable brideprice would be 12 head

of cattle, two goats and H cash shs.2,650/=. the agreement was put in writing and

respondent agreed to pay six head of cattle and cash shs.2,650/= on the spot as his first

instalment. However just after the deal was clinched, the respondent reneged and

tore both copies of the written agreement and said that he was not ready to pay such

meeting and agreement about the payable brideprice, though he agreed that his son

had married the appellant's daughter. I

1989 TLR p217

MWALUSANYA J

On that evidence I am satisfied that there was an agreement between the two parties

that A the payable brideprice would be 12 head of cattle, two goats and cash shs.

2,650/=. The appellant adduced cogent evidence at the trial which was backed up by

not less than three witnesses. The respondent cannot be allowed to repudiate an

agreement that B he had made before a group of elders. The trial court was entitled

to act on that evidence that the agreed brideprice payable was as agreed upon on

23/8/1988. Therefore the District Court was wrong to ignore such pertinent evidence

to the matter in issue.

As regards the second issue that there was no marriage, again I find that the District

C Court was wrong. First, at the trial respondent agreed that his son had married the

appellant's daughter. What he said was that the payable brideprice of 12 head of

cattle, 2 goats and cash shs.2,650/= was too much on the high side. He said that he was

only prepared to pay four head of cattle and two goats as brideprice. Therefore the D

contention by the respondent to the District Court that his son was not married to the

appellant's daughter was an afterthought. The respondent cannot be allowed to blow

hot and cold nor eat the cake and have it. Therefore I dismiss the contention by the

respondent that his son was 15 years of age (under the minimum age of marriage) at

the E time of marriage. If his son was under 18 years of age at the time of marriage,

he should have raised such a point at the trial. We take that raising such a point at

this stage is an afterthought intended to defeat a course of justice, and so it is

dismissed with the contempt it deserves. F

It is not in dispute in this case that the marriage in this case was contracted under

Kuria customary law and it was contracted by elopement. It was on 8/10/86 when the

respondent's son eloped with the appellant's daughter. They are still cohabiting as

husband and wife up to this day, some three years now. We are told that they have

one G issue and the woman is now pregnant for the second child. It is said the

husband works with Mugango Ginnery in Musoma district. That element can

constitute marriage under Kuria customary law cannot be disputed. For example in

the case of Bernard s/o Bayikafundi v Tamayamali s/o Mganidas [1970] H.C.D. n 11

(Said J.) this Court H held that elopement can constitute marriage under customary

law. That is the position that obtains in this case. And so the respondent cannot be

heard to say that there was no marriage in the circumstances.

I would further argue that there is a presumption of marriage in this case and that the

respondent has failed to rebut it as stipulated I

1989 TLR p218

MWALUSANYA J

under s.160(1) of Law of Marriage Ace No. 5/1971. It is common ground that the two

A parties in here have lived together for over two years and that they have acquired

the reputation of husband and wife and that it has been proved that they were not

married in fact but started to live together after an elopemnt. That is enough to

constitute marriage - B see my judgment on this point in Mbeya (PC) Civil Appeal

No. 50/1985 between Shija Nyangindu v Kashinje Salawi: (unreported). The other

cases with the same view are Elizabeth Salwiba v Peter s/o Obara: n. 52 (by Nyalali, J.

as he then was) C and Raphael Dibogo v Flabamis s/o Wambura: [1975] L.R.T. n. 42

(by Lugakingira, J.) The judgment of Mfalila, J. (as he then was) in Francis s/o Leo v

Paschali Simon Maganga: [1978] L.R.T. n. 22 that insists that for a presumption of

marriage to succeed it must be proved that the parties had gone through a ceremony

of marriage recognised under the law of Marriage Act, has been discredited; and it is

no longer good law. The D only three important elements to constitute a

presumption of marriage are:

(a) that the parties have cohabited for over two years;

(b) that the parties have acquired a reputation of being husband and wife;

E

(c) that there was no formal marriage ceremony between the said couple.

In the case at hand, the appellant has been able to establish those three elements. And

so F marriage has been proved between the respondent's son and the appellant's

daughter.

In the event this appeal succeeds. I allow the appeal with costs. The judgment of the

District Court is set aside, while that of the Primary Court is restored.

G Order accordingly.

1989 TLR p219

A