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
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
A
