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.
G
