Zacharia Lugendo vs Shadrack Lumilang'omba [1987] TZHC 14 (1 June 1987)


Mwalusanya, J.: This was a suit filed by the appellant Zacharia s/o Lugendo against the G 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 A 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, B 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 C 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 D 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. E
In the event the appeal must fail.  The appeal is accordingly dismissed with costs.
F Appeal dismissed.


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1. Law of Marriage Act 968 citations