Sakala v. Elia (PC) Civ. App. 133-D-70; ?/7/71; Mwakasondo Ag. J.

Sakala v. Elia (PC) Civ. App. 133-D-70; ?/7/71; Mwakasondo Ag. J.

In a suit for custody of children in the Primary Court the appellant/wife alleged that though she had lived with the respondent/husband the latter was not in law her husband because he had not paid bride-price as was the custom of her parents. There was evidence admitted by the appellant that throughout the time she lived with respondent, she held herself out as the respondent’s legal wife and the world at large considered her as such. She had also represented herself to the Administration and got a passport as respondent’s wife to join him in Zambia. The Primary Court held that as there was no evidence of payment of bride-price, no valid marriage subsisted and therefore the respondent had no right to the children. The district court reversed on the ground that there was enough evidence to support a find that a valid marriage existed; and that even assuming that no bride-price was paid, the marriage would be valid on the application of the common law principle that long cohabitation in the absence of evidence to the contrary raises a presumption that a marriage is valid relying on Fatuma d/o Amani v. Rashidi s/o Athumani [1967] H. C. D. 173. The appellant appealed.

            Held: (1) “There are, of course, good and weighty reasons why the Courts have in particular cases applied the common law principle of presumption of marriage. The basic reason I believe is the reluctance of the Courts to invalidate any marriage unless there are good and compelling grounds for doing so. The case of Nyamakaburo Makabw v. Mabera Watiku (The Governor’s Appeal Board’s Appeal No. 7 of 1944) lays down generally acceptable principles which should guide a Court in determining the issue of validity of marriage. The principles to be applied were couched by the Board in the following terms: “Where persons are living together as man and wife over a long period, and especially where there are children of the union, the Board would require the strongest possible evidence to rebut the presumption that the marriage was valid. It would require stronger evidence than that of the interested parties to confirm the assertion that no bride-price was paid and (in a case where the parties wee reputed to be man and wife in the neighborhood where they lived) even if satisfactory proof was forthcoming that the bride-price had never been paid further evidence would be necessary from an independent source to establish the assertion that non –payment of bride-price necessarily involves the invalidation of the marriage and the illegitimacy of the children.” Applying the principles in the Watiku’s case to the facts of this case there can be no doubt that there was no evidence before the Court of first instance to rebut the presumption that the marriage was valid nor in my view was there any satisfactory evidence to establish that bride-price had never been paid by the respondent. In these circumstances the Primary Court was clearly misguided in holding that the marriage was invalid. I am therefore satisfied that the District Court properly directed itself on the facts and the law in holding that the marriage between appellant and respondent was a valid one. I would accordingly

            Affirm the decision of the District Court and dismiss this appeal in respect of the first issue.” (2) “The second issue which is due for consideration is the question of the three children. It is clear from the record that this matter came before the Ilomba Primary Court and disposed of in the divorce proceedings instituted by the appellant in 1969. According to the divorce certificate produced for the examination of the lower Courts the custody of the three children was given to the respondent. There is no doubt that the Ilomba Court was in law precluded from reopening the custody issue and reversing its decision.” (3) Appeal dismissed.