Mwalusanya, J.: The appellant John s/o Kirakwe successfully sued the respondent Idd s/o Siko at Shirati Primary Court in Tarime District in a claim of payment of brideprice C amounting to 12 head of cattle, two goats and cash shs.2,650/=. The trial court found as a fact that the respondent's son had married the appellant's daughter, and so the respondent was obliged to pay the brideprice that was earlier agreed upon by the two parties. the respondent appealed to Tarime District Court and was successful and hence D this appeal by the appellant.
The District Court of Tarime held that there was no marriage between the respondent's son and the appellant's daughter and so the question of payment of brideprice could not arise. And the learned District Magistrate further argued that even if there was marriage, E no order for payment of brideprice could issue from the Court as the parties had never agreed upon as to the amount of the payable brideprice.
In my judgment I find that the District Court was wrong on both points. Concerning as to whether the parties had agreed upon the amount of the brideprice payable, I find that the F trial court was right that the parties had on 23/8/1988 clinched a deal as to the amount of brideprice payable. Evidence was adduced at the trial that on that date, the appellant with some elders who included Mr. Francis s/o Kirakwi (PW.2), Shabani s/o Lukonge G (PW.3) and Juma s/o Kiraka (PW.4) went to the respondent's home for negotiations about the payable brideprice. It is said the respondent collected his own elders. It was eventually agreed that the payable brideprice would be 12 head of cattle, two goats and H cash shs.2,650/=. the agreement was put in writing and respondent agreed to pay six head of cattle and cash shs.2,650/= on the spot as his first instalment. However just after the deal was clinched, the respondent reneged and tore both copies of the written agreement and said that he was not ready to pay such meeting and agreement about the payable brideprice, though he agreed that his son had married the appellant's daughter. I
On that evidence I am satisfied that there was an agreement between the two parties that A the payable brideprice would be 12 head of cattle, two goats and cash shs. 2,650/=. The appellant adduced cogent evidence at the trial which was backed up by not less than three witnesses. The respondent cannot be allowed to repudiate an agreement that B he had made before a group of elders. The trial court was entitled to act on that evidence that the agreed brideprice payable was as agreed upon on 23/8/1988. Therefore the District Court was wrong to ignore such pertinent evidence to the matter in issue.
As regards the second issue that there was no marriage, again I find that the District C Court was wrong. First, at the trial respondent agreed that his son had married the appellant's daughter. What he said was that the payable brideprice of 12 head of cattle, 2 goats and cash shs.2,650/= was too much on the high side. He said that he was only prepared to pay four head of cattle and two goats as brideprice. Therefore the D contention by the respondent to the District Court that his son was not married to the appellant's daughter was an afterthought. The respondent cannot be allowed to blow hot and cold nor eat the cake and have it. Therefore I dismiss the contention by the respondent that his son was 15 years of age (under the minimum age of marriage) at the E time of marriage. If his son was under 18 years of age at the time of marriage, he should have raised such a point at the trial. We take that raising such a point at this stage is an afterthought intended to defeat a course of justice, and so it is dismissed with the contempt it deserves. F
It is not in dispute in this case that the marriage in this case was contracted under Kuria customary law and it was contracted by elopement. It was on 8/10/86 when the respondent's son eloped with the appellant's daughter. They are still cohabiting as husband and wife up to this day, some three years now. We are told that they have one G issue and the woman is now pregnant for the second child. It is said the husband works with Mugango Ginnery in Musoma district. That element can constitute marriage under Kuria customary law cannot be disputed. For example in the case of Bernard s/o Bayikafundi v Tamayamali s/o Mganidas [1970] H.C.D. n 11 (Said J.) this Court H held that elopement can constitute marriage under customary law. That is the position that obtains in this case. And so the respondent cannot be heard to say that there was no marriage in the circumstances.
I would further argue that there is a presumption of marriage in this case and that the respondent has failed to rebut it as stipulated I
under s.160(1) of Law of Marriage Ace No. 5/1971. It is common ground that the two A parties in here have lived together for over two years and that they have acquired the reputation of husband and wife and that it has been proved that they were not married in fact but started to live together after an elopemnt. That is enough to constitute marriage - B see my judgment on this point in Mbeya (PC) Civil Appeal No. 50/1985 between Shija Nyangindu v Kashinje Salawi: (unreported). The other cases with the same view are Elizabeth Salwiba v Peter s/o Obara: n. 52 (by Nyalali, J. as he then was) C and Raphael Dibogo v Flabamis s/o Wambura: [1975] L.R.T. n. 42 (by Lugakingira, J.) The judgment of Mfalila, J. (as he then was) in Francis s/o Leo v Paschali Simon Maganga: [1978] L.R.T. n. 22 that insists that for a presumption of marriage to succeed it must be proved that the parties had gone through a ceremony of marriage recognised under the law of Marriage Act, has been discredited; and it is no longer good law. The D only three important elements to constitute a presumption of marriage are:
(a) that the parties have cohabited for over two years;
(b) that the parties have acquired a reputation of being husband and wife; E
(c) that there was no formal marriage ceremony between the said couple.
In the case at hand, the appellant has been able to establish those three elements. And so F marriage has been proved between the respondent's son and the appellant's daughter.
In the event this appeal succeeds. I allow the appeal with costs. The judgment of the District Court is set aside, while that of the Primary Court is restored.
G Order accordingly.
A
________________
