RAMADHANI RAMADHANI v SUNGI ANDALU 1984 TLR 158 (HC)

RAMADHANI RAMADHANI v SUNGI ANDALU 1984 TLR 158 (HC)

Court High Court of Tanzania - Dodoma

Judge Maina J

fEBRUARY 11, 1984

(PC) CIVIL APPEAL 49 OF 1983

Flynote

Family law - Desertion - Compensation for inducing wife to desert - Whether

damages recoverable.

Family Law - Marriage - Whether payment of bridewealth per se constitutes a valid

marriage. H

-Headnote

The appellant claimed damages from his father in law for inducing his wife to desert

him. The claim was based on a marriage which had never taken place since the

appellant's only proof of the alleged I marriage was that he had paid some

bridewealth.

1984 TLR p159

MAINA J

A Held: (i) Payment of bridewealth, even if proved is not evidence of marriage;

there must be clear evidence of a marriage ceremony;

(ii) the onus of proving the existence of a marriage is upon the party who

alleges its existence;

B (iii) without proof of marriage, there can be no basis for damages for inducing

a spouse to desert.

Case Information

Appeal dismissed.

C No case referred to.

[zJDz]Judgment

Maina, J.: The appellant, Ramadhani Ramadhani, filed a suit in the primary court at

Ilongero claiming from the respondent, Sungi Andalu, four head of cattle being what

the appellant said was damages D for inducing his wife to desert him. The primary

court held that the respondent had wilfully married his daughter Zainabu to another

man while the marriage between the appellant and Zainabu subsisted. The

respondent was ordered by the primary court to pay the damages claimed. The E

respondent however, appealed to the district court at Singida and the learned district

magistrate held that there was no marriage at all between the appellant and Zainabu

and therefore the respondent had a right to marry his daughter to Alute. The

appellant was disatisfied and he now appeals to this court.

F The only issue is whether the appellant and Zainabu were ever married. There

was no marriage certificate tendered but the appellant alleged that he married

Zainabu in 1973 under customary law and that he had paid three white cows as

bridewealth. The respondent vehemently denied that his G daughter Zainabu was

at anytime married to the appellant. In fact the respondent claimed that his daughter

and the appellant eloped to Arusha and when she returned the daughter was later

married to Alute. That evidence was supported by the evidence of Zainabu herself

and by the respondent's brother Mwangi Andalu and his son Ramadhani Sungi. As I

said, and the learned district magistrate H who heard the first appeal pointed out,

the issue is whether the appellant and Zainabu were married. The onus was on the

appellant to prove that fact. Without proof of marriage, there can be no basis for

damages for inducing Zainabu to desert the appellant.

I The only evidence of existence of marriage between the appellant and the

respondent's daughter, Zainabu, was that of payment of

1984 TLR p160

MAINA J

bridewealth to the respondent. But the evidence to that effect was unreliable. The

appellant A testified that the bridewealth paid consisted of three cows. His

witnesses, Ali Amasi and Omari Musa, on the other hand, said that they personally

paid one cow and five goats as bridewealth to the respondent. There is an obvious

contradiction between the evidence by the appellant and that of his two witnesses, on

this issue. That contradiction casts a lot of doubt on the evidence and it is B difficult

to believe that any bridewealth was ever paid to the respondent. So, the lower courts

were entitled to believe the respondent when he said that no bridewealth was paid

and that there was no C marriage between the appellant and the respondent's

daughter, Zainabu. The appellant totally failed to prove his allegation that he paid

bridewealth to the respondent and his evidence was properly rejected by the lower

courts.

Even if, for the sake of argument, the appellant had paid bridewealth, there was no

evidence of any marriage ceremony between the appellant and Zainabu. Payment of

bridewealth, even if proved, is D not evidence of existence of marriage. There must

be clear evidence of a marriage ceremony. The appellant failed to prove that there

was such ceremony of marriage. Under section 27(1) of the Law of Marriage Act, No.

5 of 1971, every marriage must be contracted in the presence of at least two E

witnesses. If the appellant claimed that he had married Zainabu by customary law, he

had to prove that there was such marriage by calling even one witness who was

present at such ceremony. The appellant not only failed to prove payment of

bridewealth, but he failed to prove that there was F marriage performed between

him and respondent's daughter, Zainabu. The respondent and all his witnesses denied

existence of such marriage and in the circumstances, the first appeal rightly held that

no marriage existed between the appellant and Zainabu. That being the position, the

respondent was perfectly free to marry his daughter to Alute or to any other person.

G

The appellant's claim for damages was misconceived and this appeal is dismissed with

costs.

Appeal dismissed. H

1984 TLR p161

A