Police uncover massive money-laundering scam
By ThisDay Reporter
2nd February 2011
MORE THAN HALF A BILLION SHILLINGS ALLEGEDLY STOLEN
FROM A BANK CONVERTED INTO MOBILE PHONE VOUCHERS
A Dar es Salaam-based businessman has been charged with alleged fraud and theft of more than half a billion shillings from a bank, in one of the biggest money laundering cases in the country.
Forty-year-old Humoud Ally Salum, a resident of Kariakoo area in the city, was arraigned before the Kisutu Resident Magistrate's Court on January 17, this year, on 15 counts of fraud, theft and money laundering.
In the elaborate money laundering scam, the businessman was alleged to have stolen hundreds of millions of shillings from one bank, transferred the money to another bank then quickly converted the cash into mobile phone vouchers.
He is alleged to have used the stolen funds to purchase mobile phone vouchers worth more than 500m/- on different occasions to try to hide the source of the illicit money.
The businessman denied the charges before resident magistrate Sundi Fimbo and was sent to remand prison until the case comes up for another mention today.
In the first count, prosecutors alleged that Salum illegally obtained more than 560m/- from CRDB Bank through fraud.
"Humoud Ally Salum ... between November and December 2010 within the city and region of Dar es Salaam, conspired with other persons unknown to defraud CRDB Bank 562,861,500/-," said part of the charge sheet seen by THISDAY.
In the second count, the accused person was charged with theft of the stated amount from CRDB Bank.
Prosecutors charged the businessmen with more than ten counts of money laundering.
According to the charge sheet, Salum "directly engaged himself in a transaction involving the proceeds of a predicate offence by receiving credit in his bank account number 041103001336 at NBC Limited Muhimbili branch amounting to 185,580,000/-, which was stolen from CRDB Bank."
Prosecutors alleged that Salum received another payment of 228,375,000/- in the same NBC bank account on December 7, last year, which was allegedly stolen from NBC Bank.
On December 20, last year, another payment of 148,906,500/- was allegedly made into his NBC bank account from the same stolen CRDB bank funds, prosecutors said.
Salum, who is also known as Salim or Humoud Shkely, is alleged to have used 73m/- out of the stolen funds to purchase mobile phone recharge vouchers from Shivacom Group in Dar es Salaam.
Prosecutors alleged that the move was aimed at "concealing or disguising the illicit origin of that money or assisting persons involved in the commission of the offence to evade the legal consequences of their actions."
Prosecutors said the businessman again bought 85m/- worth of mobile phone vouchers on December 10 with the same money laundering intention.
On December 21, Salum also converted 70m/- cash into recharge vouchers bought from Shivacom.
He then purchased another 20m/- worth of mobile phone vouchers from Selcom Wireless company, said prosecutors.
Other transactions involving the purchase of mobile phone vouchers were made on December 8 from Selcom Wireless (60m/-), November 29 from CHISS JR Company (26m/-), December 22 from CHISS JR company (77.5m/-), December 8 from Come and Call Ltd (90m/-), November 27 from Ace Distributors Ltd (35m/-) and November 26 from Freedom Communication Ltd (20.9m/-).
Saturday, February 5, 2011
WAKIHAMA CHAMA CHA MAPINDUZI
Wanachama 1,550 wa CCM watimkia CHADEMA
WAKATI Chama Cha Mapinduzi (CCM) jana kikiadhimisha miaka 34 tangu kianzishwe, zaidi ya wanachama wake 1,550 wamekihama chama hicho na kujiunga na Chama cha Demokrasia na Maendeleo (CHADEMA).
Katibu wa CHADEMA wa Wilaya ya Maswa, Luhende Mipawa, alisema kuwa wanachama hao wamerudisha kadi hizo kwa wakati tofauti siku tatu tangu CCM ilipozindua maadhimisho ya miaka 34 ya kuzaliwa kwa chama hicho.
“Tangu CCM walipozindua sherehe zao za kutimiza miaka 34, tumepokea wanachama wapatao 1,550 kutoka matawi mbalimbali ya CCM katika Wilaya ya Maswa ambao wamejiunga na chama chetu,” alisema.
Alisema kuwa dalili hizo zinaonyesha wazi wananchi wa wilaya hiyo walivyo na imani kwa CHADEMA wanachokiamini ndicho chama kikuu cha upinzani hapa nchini.
“Hizi ni dalili njema kuwa wananchi wanakikubali chama chetu ndiyo maana unaona kwa muda wa siku tatu tumevuna wanachama 1,550, tuna kazi kubwa ya kutimiza kiu kubwa ya wananchi wetu,” alisema.
Akizungumza na Tanzania Daima Jumapili, mmoja wa wanachama wa CCM aliyehamia CHADEMA, Geni Jilala, alisema kuwa kwa sasa chama hicho kimekosa mwelekeo na kupoteza misingi iliyowekwa na Mwalimu Nyerere na matokeo yake kimekuwa ni cha kuwatumikia wenye fedha huku wanyonge wakiachwa, hivyo CHADEMA ndiyo chama mbadala.
“CCM ya leo inawakumbatia wenye fedha, kwani ndiyo wana sauti ndani ya chama, sisi wanyonge tumeachwa, hivyo tumeona heri tukimbilie CHADEMA ambacho ndicho chama cha wanyonge,” alisema Jilala.
Aliongeza kwamba kutokana na mgawanyiko na makundi yanayokitafuna chama hicho wilayani humo, kuna hatari ya kusambaratika na kubaki na jengo la ofisi. Hivi karibuni Katibu wa Uenezi wa CCM Taifa, Kapteni John Chiligati, alishindwa kuhutubia mkutano wa hadhara mjini Maswa katika viwanja wa MADECO, baada ya wananchi kutojitokeza kwa madai kuwa chama hicho hakina jipya la kuwaeleza wakazi wa mji huo.
WAKATI Chama Cha Mapinduzi (CCM) jana kikiadhimisha miaka 34 tangu kianzishwe, zaidi ya wanachama wake 1,550 wamekihama chama hicho na kujiunga na Chama cha Demokrasia na Maendeleo (CHADEMA).
Katibu wa CHADEMA wa Wilaya ya Maswa, Luhende Mipawa, alisema kuwa wanachama hao wamerudisha kadi hizo kwa wakati tofauti siku tatu tangu CCM ilipozindua maadhimisho ya miaka 34 ya kuzaliwa kwa chama hicho.
“Tangu CCM walipozindua sherehe zao za kutimiza miaka 34, tumepokea wanachama wapatao 1,550 kutoka matawi mbalimbali ya CCM katika Wilaya ya Maswa ambao wamejiunga na chama chetu,” alisema.
Alisema kuwa dalili hizo zinaonyesha wazi wananchi wa wilaya hiyo walivyo na imani kwa CHADEMA wanachokiamini ndicho chama kikuu cha upinzani hapa nchini.
“Hizi ni dalili njema kuwa wananchi wanakikubali chama chetu ndiyo maana unaona kwa muda wa siku tatu tumevuna wanachama 1,550, tuna kazi kubwa ya kutimiza kiu kubwa ya wananchi wetu,” alisema.
Akizungumza na Tanzania Daima Jumapili, mmoja wa wanachama wa CCM aliyehamia CHADEMA, Geni Jilala, alisema kuwa kwa sasa chama hicho kimekosa mwelekeo na kupoteza misingi iliyowekwa na Mwalimu Nyerere na matokeo yake kimekuwa ni cha kuwatumikia wenye fedha huku wanyonge wakiachwa, hivyo CHADEMA ndiyo chama mbadala.
“CCM ya leo inawakumbatia wenye fedha, kwani ndiyo wana sauti ndani ya chama, sisi wanyonge tumeachwa, hivyo tumeona heri tukimbilie CHADEMA ambacho ndicho chama cha wanyonge,” alisema Jilala.
Aliongeza kwamba kutokana na mgawanyiko na makundi yanayokitafuna chama hicho wilayani humo, kuna hatari ya kusambaratika na kubaki na jengo la ofisi. Hivi karibuni Katibu wa Uenezi wa CCM Taifa, Kapteni John Chiligati, alishindwa kuhutubia mkutano wa hadhara mjini Maswa katika viwanja wa MADECO, baada ya wananchi kutojitokeza kwa madai kuwa chama hicho hakina jipya la kuwaeleza wakazi wa mji huo.
HASARA ZA KUILIPA DOWANS NI MHIMILI MMOJA KUUDHARAU MWINGINE
Revealed: The cost of paying Dowans
By ThisDay Reporter
19th January 2011
NATIONAL ECONOMY, GOVERNMENT'S MORAL AND ETHICAL STANDING IN JEOPARDY
AS PRESSURE MOUNTS TO MAKE HUGE PAYOUT FOR AN ILLEGAL POWER CONTRACT
THE decision by the Ministry of Energy and Minerals to agree to pay Dowans Holdings SA/Dowans Tanzania Limited a staggering $65 million plus interest (approx. 100 billion/-) for an illegal power generation contract could have far-reaching and potentially devastating consequences for President Jakaya Kikwete's government, it has been revealed.
The Richmond/Dowans contract with the state-run Tanzania Electric Supply Company (TANESCO) was terminated following recommendations of a parliamentary committee chaired by the Kyela Member of Parliament, Dr. Harrison Mwakyembe, that probed the dubious power generation deal signed in 2006.
The report of Mwakyembe's committee, which was unanimously endorsed by the National Assembly, called among other things for the termination of the contract because it contravened the Public Procurement Act of 2004.
After carefully studying the parliamentary resolution, a team of legal experts at the Attorney General's Chambers concurred with the Bunge recommendations and the contract was duly terminated.
But in an unexpected move, the same Attorney General's chambers has now reversed its initial decision and advised the government to now pay Dowans more than $65 million for the same illegal contract.
"If the government pays Dowans, it means it has effectively gone against its own decision and that of the Tanzanian Parliament to declare the contract null and void and call for its termination," said a senior legal expert in government.
"Parliament declared that the Dowans contract was illegal. A parliamentary resolution to this effect was unanimously approved by all lawmakers. Any payments by the government to Dowans would contravene a valid parliamentary resolution."
There are sharp divisions among senior government officials, including Cabinet ministers, over a controversial ruling of the International Court of Arbitration (ICC) that ordered TANESCO to make questionable payments in favour of Dowans.
The Minister for Energy and Minerals, William Ngeleja, surprisingly announced that the government had agreed to pay Dowans as per the ICC ruling without even seeking prior Cabinet approval.
Under normal circumstances, Ngeleja would need to get the approval of Cabinet before making any final decision unilaterally regarding such a massive financial liability to the government.
Apart from creating divisions in the top echelons of the Kikwete administration and eroding the government's moral and ethical standing, the Dowans saga could have a devastating blow on the nation's economy.
"The Dowans situation has already caused shock waves in interbank trading. The market has panicked, thus pushing the shilling downwards towards further depreciation," a trader at a state-run bank told THISDAY.
Commercial banks quoted the shilling at 1,485/1,490 to the dollar last Thursday compared with 1,469/1,475 at the close of trading the previous week.
"There is a scarcity of dollars in the market right now. Therefore, an outflow of 65 million dollars from the market will mean the shilling could slide sharply to 1,500 or even 1,800 levels."
"Paying Dowans will mean exporting $65 million out of the country. This will seriously hurt Tanzania's economy."
A weaker currency could push up the inflation rate and undermine the government's goal of achieving a 7.2 percent economic growth this year.
"There is one golden rule about weak currencies – they affect the economies of poor countries like Tanzania that are import-oriented and carry huge debts," said the bank trader.
"This means that Tanzanians could end up paying more for basics such as food, consumer goods, kerosene and petrol, as a direct result of the Dowans payment. This is something that any sensible government should avoid."
While some government officials are seemingly in a rush to pay Dowans, the Minister for Finance, Mustafa Mkulo, has declared that government coffers have already dried up.
It has been suggested that Ngeleja's ministry and TANESCO could make re-allocations of their existing budgets and try to raise the $65 million, which government bureaucrats admit would be a difficult thing to achieve.
"TANESCO is cash-strapped and has huge debts. Where will the money come from to pay Dowans for a contract that is illegal in the first place?" Asked one well-placed government official.
Several government development initiatives, such as construction of roads and other infrastructure projects, have now been put on hold because of budget constraints.
Some analysts warn that the government could land in a political quagmire if it persists in paying Dowans for the illegal contract.
"Any payments to Dowans could have a major political backlash on the government. Parliament will need an explanation on why the government chose to disregard a valid Bunge resolution on the matter and there is growing public resentment on the move," said one political commentator.
“Donor countries are closely watching the government's next move and could free funds for the 2011/12 budget if it is revealed that the government squandered $65 million on an illegal contract.”
By ThisDay Reporter
19th January 2011
NATIONAL ECONOMY, GOVERNMENT'S MORAL AND ETHICAL STANDING IN JEOPARDY
AS PRESSURE MOUNTS TO MAKE HUGE PAYOUT FOR AN ILLEGAL POWER CONTRACT
THE decision by the Ministry of Energy and Minerals to agree to pay Dowans Holdings SA/Dowans Tanzania Limited a staggering $65 million plus interest (approx. 100 billion/-) for an illegal power generation contract could have far-reaching and potentially devastating consequences for President Jakaya Kikwete's government, it has been revealed.
The Richmond/Dowans contract with the state-run Tanzania Electric Supply Company (TANESCO) was terminated following recommendations of a parliamentary committee chaired by the Kyela Member of Parliament, Dr. Harrison Mwakyembe, that probed the dubious power generation deal signed in 2006.
The report of Mwakyembe's committee, which was unanimously endorsed by the National Assembly, called among other things for the termination of the contract because it contravened the Public Procurement Act of 2004.
After carefully studying the parliamentary resolution, a team of legal experts at the Attorney General's Chambers concurred with the Bunge recommendations and the contract was duly terminated.
But in an unexpected move, the same Attorney General's chambers has now reversed its initial decision and advised the government to now pay Dowans more than $65 million for the same illegal contract.
"If the government pays Dowans, it means it has effectively gone against its own decision and that of the Tanzanian Parliament to declare the contract null and void and call for its termination," said a senior legal expert in government.
"Parliament declared that the Dowans contract was illegal. A parliamentary resolution to this effect was unanimously approved by all lawmakers. Any payments by the government to Dowans would contravene a valid parliamentary resolution."
There are sharp divisions among senior government officials, including Cabinet ministers, over a controversial ruling of the International Court of Arbitration (ICC) that ordered TANESCO to make questionable payments in favour of Dowans.
The Minister for Energy and Minerals, William Ngeleja, surprisingly announced that the government had agreed to pay Dowans as per the ICC ruling without even seeking prior Cabinet approval.
Under normal circumstances, Ngeleja would need to get the approval of Cabinet before making any final decision unilaterally regarding such a massive financial liability to the government.
Apart from creating divisions in the top echelons of the Kikwete administration and eroding the government's moral and ethical standing, the Dowans saga could have a devastating blow on the nation's economy.
"The Dowans situation has already caused shock waves in interbank trading. The market has panicked, thus pushing the shilling downwards towards further depreciation," a trader at a state-run bank told THISDAY.
Commercial banks quoted the shilling at 1,485/1,490 to the dollar last Thursday compared with 1,469/1,475 at the close of trading the previous week.
"There is a scarcity of dollars in the market right now. Therefore, an outflow of 65 million dollars from the market will mean the shilling could slide sharply to 1,500 or even 1,800 levels."
"Paying Dowans will mean exporting $65 million out of the country. This will seriously hurt Tanzania's economy."
A weaker currency could push up the inflation rate and undermine the government's goal of achieving a 7.2 percent economic growth this year.
"There is one golden rule about weak currencies – they affect the economies of poor countries like Tanzania that are import-oriented and carry huge debts," said the bank trader.
"This means that Tanzanians could end up paying more for basics such as food, consumer goods, kerosene and petrol, as a direct result of the Dowans payment. This is something that any sensible government should avoid."
While some government officials are seemingly in a rush to pay Dowans, the Minister for Finance, Mustafa Mkulo, has declared that government coffers have already dried up.
It has been suggested that Ngeleja's ministry and TANESCO could make re-allocations of their existing budgets and try to raise the $65 million, which government bureaucrats admit would be a difficult thing to achieve.
"TANESCO is cash-strapped and has huge debts. Where will the money come from to pay Dowans for a contract that is illegal in the first place?" Asked one well-placed government official.
Several government development initiatives, such as construction of roads and other infrastructure projects, have now been put on hold because of budget constraints.
Some analysts warn that the government could land in a political quagmire if it persists in paying Dowans for the illegal contract.
"Any payments to Dowans could have a major political backlash on the government. Parliament will need an explanation on why the government chose to disregard a valid Bunge resolution on the matter and there is growing public resentment on the move," said one political commentator.
“Donor countries are closely watching the government's next move and could free funds for the 2011/12 budget if it is revealed that the government squandered $65 million on an illegal contract.”
SHERIA ZA KIMILA TANZANIA/CUSTOMARY LAW CASES
CUSTOMARY LAW CASES
5/2/2011
1. ADAMU MTONDO v. LIKUNA OMARI (1968) HCD 289 – Hamlyn, J.
Divorce –Islamic Law – Divorce Normally Must be Pronounced three times – Revocation of Divorce – Unaffected by Fact Dowry not fully paid.
Appelant orally pronounced a divorce from his wife. Somewhat less than a month later, presumably in a period of “tuhr”, he orally revoked the divorce. The PC held that the divorce was complete and, on appeal, the DC affirmed acting on the advice of an assessor that the revocation was of no effect because the dowry had not been fully paid at that time. Neither court specified the school of Muslim law which the parties adhered.
Held:
1. Under the more common interpretations, divorce is effected only by three pronouncements and was not effected here, where only one pronouncement was given. Trial courts should specify the school of Muslim law which is applicable; in the absence of any indication to the contrary, it should be presumed that the more common interpretation applies.
2. Even if the single pronouncement was effective, the fact that the dowry had not been fully paid did not affect the validity of the revocation and the oral divorce was rescinded. Appeal allowed and respondent declared to be still the lawful wife of appellant.
2. MAHUNDYA MBURUMATARE v. MUGENDI NYAKANGARA (1969) HCD 7
26/11/2968 - Seaton, J.
Customary marriage – Validity depends upon the issue of a marriage certificate.
The respondent claimed compensation for adultery allegedly committed by his alleged wife. The question turned on the proof of marriage. The respondent argued that he married the woman in 1964, and that the marriage certificate was not regarded as necessary under the local customs.
Held:
1. The case falls to be determined under the Declaration of Customary Law, GN 279 OF 1963. Sec. 86 provides that the marriage must be legalized by the issue of a marriage certificate. The traditional ceremonies have no legal force.
2. IN the instant case, besides the non-production of the marriage certificate there were other discrepancies in evidence which indicated that there was no marriage between the respondent and the woman. Appeal allowed.
3. MATIKO CHABHA v. MATHIAS MWITA (1969) HCD 8 - Saidi, J. – 4/11/1968
Divorce – Return of dowry – When permissible.
This was a claim for the return of dowry. The parties were married under customary law, and the Husband had paid dowry. On divorce, normally dowry is not returnable once the children have been born, which was the case here. However, the wife has since remarried, and her father had received a second set of dowry.
Held:
1. Under Clause 52B of the Customary Declaration Order 1963 the claim for the return of dowry b y the husband on dissolution of the marriage cannot be entertained if the wife has borne him children. The Declaration does not touch on the relevant issue raised in the instant case, namely whether it is fair to bar the husband from recovering the dowry or a proportionate part thereof where the wife who has borne him children is divorced and having been re-married dowry is paid again to the father. This way a father could get several sets of dowry for the same daughter. In such a case the former husband is entitled to receive a substantial part of the dowry he has paid.
Note from Blogger:
With due respect to his Lordship, this decision makes the wife look exactly like a commodity on the marketplace and not a human being. It is not fair and I think this was an erroneous decision, even then (1968). The dowry from the first husband or any subsequent husband for that matter was not supposed to be paid, with or without the appearance of children in the marriage!
4. RALANG MUMANYI v WAMBURA MWITA (1969) HCD 9 – Seaton, J. –
The appellant sued the defendant in the primary court in North Mara District for the return of bride wealth. There was evidence that after several years of marriage, the plaintiff’s wife (the defendant’s daughter) had deserted the plaintiff, but there was no evidence that the plaintiff had obtained a divorce. At the trial the plaintiff and the defendant gave evidence but were not allowed to cross-examine one another. It was not recorded whether or not they were allowed to call other witnesses. No issues were framed by the court, nor were the opinion of the assessors recorded. The trial court gave judgment for the plaintiff, relying on ss. 133, 134 and 140 of Law of Persons GN 279/1963, which provide that desertion is a ground for divorce and that the Husband may claim divorce and seek a return of bride wealth without legal obligation to search for his wife.
HELD:
1. After the Plaint had been read and the defendant’s statement in reply recorded, the court should have framed the issues in the case and determined whether or not the defendant admitted or denied the plaintiff’s allegations. [Citing r. 44-47 Magistrates Courts [Civil Procedure in Primary Court] Rules, GN 310 of 1964.
2. The trial court should have recorded whether or not the parties had been given opportunity to cross-examine and to call witnesses.
3. Although a primary court has discretion as to whether or not to sit with assessors [s.8 MCA Cap. 537], once the court decided to sit with assessors it must record their opinions and, if he disagrees with them, give reasons for his disagreement.
4. The section of the law of Persons cited by the trial court must be read together with s. 37A which provides that bride wealth may be required to be returned “in case of divorce.” In the present case, there was no evidence of a divorce and the award cannot be sustained.
5. ADMINISTRATOR GENERAL, ZANZIBAR, ADMINISTRATION OF ESTATE OF TOPAN KARSN RAMJI alias RASHID KARSAN RAMJI, DECEASED v. KULSAM FADHIL MUSSA & 5 ors. (1969) HCD 80 - 7/2/1967 – Kimicha, C.J.
The parties, children of the deceased, claimed a piece of property formerly belonging to the deceased. The Administrator General is the plaintiff in form only, belonging the action in court for instruction on the question of which of the disputants should receive the property. Mohamed Hussein claims the property by way of a deed of gift, made to him by the deceased, his father, in 1960. The deed gift was duly witnessed, but the deceased died without registering it as required by Zanzibar law. Mohamed’s sister argued that the gift was invalid for non-registration, and therefore that the property was properly part of the deceased’s estate, to be distributed among all the heirs.
One Ahmed Juma testified that he had been a tenant on the property since 1960, that the deceased in 1960 told him that he had given the property to his son and that the rent should thenceforth be paid to the son, and that he had since that time paid the rent to the son who issued receipts in his own name. One of the witnesses to the deed of gift testified as to its genuineness. The parties were Muslims, members of the Shia sect.
HELD:-
1. The validity of gifts and the distribution of estates is governed by Muslim law, where the deceased was a Muslim. “In civil matters the law of Islam is and is is hereby declared to be the fundamental law of the republic, under Cap. 3, s.7.
2. Mulla’s Principles of Mohammedan Law, para 150 (3), states: “If it is proved by oral evidence that a gift was competed as required by law, it is immaterial that the donor has also executed a deed of gift, but the deed has not been registered as required by the Registration Act.”
3. According to Shia Law, the requirements for a valid gift are:-
(a) A declaration of the gift b y the donor;
(b) An acceptance of the gift by the donee; and
(c) A delivery of possession to the donee. Since these requirements were complied with here, the gift was valid, and Mohamed Hussein is entitled to the property.
7. SHABANI v. SOFIA (1971) HCD 5 -/11/1970 - Kwikima, AG. J.
The respondent who used to live in concubinage with the appellant’s father sued the appellant for compensation of shs.9.120/= for evicting her from the deceased’s house which she used to occupy in his lifetime. The primary court dismissed the claim because the respondent and the deceased were Muslims and according to Islamic law, a concubine has no right to inherit part of the estate which a legally wedded wife is entitled to. Even under Chagga law which could be applicable were the respondent married to the deceased, Chagga widows do not inherit when there are male issues surviving as in this case. The district magistrate felt that the respondent was entitled to some of the estate after staying with the appellant’s father for 19 years and awarded her a quarter of the amount claimed.
HELD:-
1. With due respect this decision cannot be in accordance with the law. In suing the appellant, the respondent necessarily meant that the appellant had wronged her by depriving her part of the inheritance. How could this be if she was not entitled to any? Both Chagga and Islamic law exclude her from inheriting. According to Chagga law, she would not inherit in the presence of the appellant even if she was legally wedded to the deceased. She could not inherit under Islamic law either, being only the concubine of the deceased.
2. As this suit is not an administration of deceased’s estate matter, the appellant cannot be sued by the respondent. “Compensation” is payable by the husbands who divorce their wives or men who forsake their concubines with whom they have worked together and accumulated some wealth to be shared. In this case the appellant was the son of the man who kept the respondent as his concubine. The respondent could not therefore be heard to sue him.
3. Appeal allowed.
8. MANYASA v. MWANAKOMBO (1971) HCD 13- 20/10/1070 - Georges, C.J.
A divorced wife sued the husband for maintenance of three children. The husband died before the case was finalized. The district magistrate substituted the surviving widow for the deceased husband and made an order of maintenance against her at the rate of shs.50/= per month. On appeal, the learned judge set aside the order because the liability for maintaining the children of the broken marriage rested on the deceased husband and not on his surviving widow. The judge however, awarded the children a house allegedly owned by the deceased. When the divorced wife sought to execute the order, a claimant appeared who asserted that the house was his as it had been transferred to him years ago b the deceased. The chief Justice in this Inspection Note outlined the proper procedure to be followed,
HELD:
1. The divorced wife should have been advised to apply for execution under the MCXA [Civil Procedure in Primary Courts] Rules, 1964, s. 58. The Claimant could then appear and show cause why he should not be evicted. If the court rejects the claim, then the matter would be at an end, the order executed. If the court holds that the property in fact belongs to the claimant, then the divorced wife can appeal if she wishes.
9. IN RE: SALUM OMARI MKEREMI (1973) LRT 80, Mfalila, Ag. J. 14/5/1973.
1. The Law applicable to a “deceased native’s estate” [under Cap 30] is the tribal customary law of the deceased unless he had professed the Mohammedan religion and the court is satisfied from the written or oral declaration of the deceased, or his acts or manner of life, that he intended his estate to be administered according to Mohammedan law.
2. The deceased manner and way of life was far removed from his tribal customs, consequently the deceased estate should be administered in accordance with Mohammedan law of succession and not Hehe customary law of succession.
3. A Christian widow can inherit in the estate of her deceased Mohammedan husband and take 1/8th share as provided for by Mohammedan law as long as their marriage was one recognized under that law. [Administrator-General applied u/s 88(1) (b) of Probate and Administration of Estates Act.]
Page 354 of the HCD Casebook: Mrs. Nelly Mkeremi according to the above para. is Kitabia, therefore her civil marriage under the Marriage Ordinance to the deceased was a valid marriage recognized by Mohammedan law. She is therefore a “wife” under that law. If this is so then she is entitled to her share as a wife in the deceased’s estate. MULLA:- P. 234, Para. 259:
“a Mohammedan may contract a valid marriage not only with a Mohammedan women, but also with a Kitabia, that is a Jewess or a Christian, but not with an Idolatress or a fire-worshiper.”
s.19 (4) of JALO? Or Probate? - Notwithstanding any tribal or Mohammedan law to the contrary (b) a person shall not be deprived of a right to succession to property by reason of that person having renounced or having been excluded from the communion of any religion.
10. MANUGWA LUTALAMILA & 2 ors. V. MARTHA LUTALAMILA (1982) TLR 98 – Mfalila, J.
See MCA, sec. 320/1964.
1. In the administration of estates where the law applicable is customary law the Chief Justice is empowered u/s 14 (2) of MCA, 1963 to confer jurisdiction upon Primary Courts to administer the same.
2. Where the matter in issue is inheritance in customary law, then irrespective of the nature of the property involved, the Primary Court has jurisdiction unless the High Court has directed under section 88 of the Probate and Administration Ordinance that the provisions of that ordinance shall apply to the estate in question.
3. Under s.57 (1) of MCA, 1963 THE District Court is denied original jurisdiction to determine a matter of inheritance arising out of customary law.
4. The District Magistrate was wrong in declaring the proceedings in the Primary Court null and void and quashing them; he should have decided the appeal on merits. Order accordingly.
5/2/2011
1. ADAMU MTONDO v. LIKUNA OMARI (1968) HCD 289 – Hamlyn, J.
Divorce –Islamic Law – Divorce Normally Must be Pronounced three times – Revocation of Divorce – Unaffected by Fact Dowry not fully paid.
Appelant orally pronounced a divorce from his wife. Somewhat less than a month later, presumably in a period of “tuhr”, he orally revoked the divorce. The PC held that the divorce was complete and, on appeal, the DC affirmed acting on the advice of an assessor that the revocation was of no effect because the dowry had not been fully paid at that time. Neither court specified the school of Muslim law which the parties adhered.
Held:
1. Under the more common interpretations, divorce is effected only by three pronouncements and was not effected here, where only one pronouncement was given. Trial courts should specify the school of Muslim law which is applicable; in the absence of any indication to the contrary, it should be presumed that the more common interpretation applies.
2. Even if the single pronouncement was effective, the fact that the dowry had not been fully paid did not affect the validity of the revocation and the oral divorce was rescinded. Appeal allowed and respondent declared to be still the lawful wife of appellant.
2. MAHUNDYA MBURUMATARE v. MUGENDI NYAKANGARA (1969) HCD 7
26/11/2968 - Seaton, J.
Customary marriage – Validity depends upon the issue of a marriage certificate.
The respondent claimed compensation for adultery allegedly committed by his alleged wife. The question turned on the proof of marriage. The respondent argued that he married the woman in 1964, and that the marriage certificate was not regarded as necessary under the local customs.
Held:
1. The case falls to be determined under the Declaration of Customary Law, GN 279 OF 1963. Sec. 86 provides that the marriage must be legalized by the issue of a marriage certificate. The traditional ceremonies have no legal force.
2. IN the instant case, besides the non-production of the marriage certificate there were other discrepancies in evidence which indicated that there was no marriage between the respondent and the woman. Appeal allowed.
3. MATIKO CHABHA v. MATHIAS MWITA (1969) HCD 8 - Saidi, J. – 4/11/1968
Divorce – Return of dowry – When permissible.
This was a claim for the return of dowry. The parties were married under customary law, and the Husband had paid dowry. On divorce, normally dowry is not returnable once the children have been born, which was the case here. However, the wife has since remarried, and her father had received a second set of dowry.
Held:
1. Under Clause 52B of the Customary Declaration Order 1963 the claim for the return of dowry b y the husband on dissolution of the marriage cannot be entertained if the wife has borne him children. The Declaration does not touch on the relevant issue raised in the instant case, namely whether it is fair to bar the husband from recovering the dowry or a proportionate part thereof where the wife who has borne him children is divorced and having been re-married dowry is paid again to the father. This way a father could get several sets of dowry for the same daughter. In such a case the former husband is entitled to receive a substantial part of the dowry he has paid.
Note from Blogger:
With due respect to his Lordship, this decision makes the wife look exactly like a commodity on the marketplace and not a human being. It is not fair and I think this was an erroneous decision, even then (1968). The dowry from the first husband or any subsequent husband for that matter was not supposed to be paid, with or without the appearance of children in the marriage!
4. RALANG MUMANYI v WAMBURA MWITA (1969) HCD 9 – Seaton, J. –
The appellant sued the defendant in the primary court in North Mara District for the return of bride wealth. There was evidence that after several years of marriage, the plaintiff’s wife (the defendant’s daughter) had deserted the plaintiff, but there was no evidence that the plaintiff had obtained a divorce. At the trial the plaintiff and the defendant gave evidence but were not allowed to cross-examine one another. It was not recorded whether or not they were allowed to call other witnesses. No issues were framed by the court, nor were the opinion of the assessors recorded. The trial court gave judgment for the plaintiff, relying on ss. 133, 134 and 140 of Law of Persons GN 279/1963, which provide that desertion is a ground for divorce and that the Husband may claim divorce and seek a return of bride wealth without legal obligation to search for his wife.
HELD:
1. After the Plaint had been read and the defendant’s statement in reply recorded, the court should have framed the issues in the case and determined whether or not the defendant admitted or denied the plaintiff’s allegations. [Citing r. 44-47 Magistrates Courts [Civil Procedure in Primary Court] Rules, GN 310 of 1964.
2. The trial court should have recorded whether or not the parties had been given opportunity to cross-examine and to call witnesses.
3. Although a primary court has discretion as to whether or not to sit with assessors [s.8 MCA Cap. 537], once the court decided to sit with assessors it must record their opinions and, if he disagrees with them, give reasons for his disagreement.
4. The section of the law of Persons cited by the trial court must be read together with s. 37A which provides that bride wealth may be required to be returned “in case of divorce.” In the present case, there was no evidence of a divorce and the award cannot be sustained.
5. ADMINISTRATOR GENERAL, ZANZIBAR, ADMINISTRATION OF ESTATE OF TOPAN KARSN RAMJI alias RASHID KARSAN RAMJI, DECEASED v. KULSAM FADHIL MUSSA & 5 ors. (1969) HCD 80 - 7/2/1967 – Kimicha, C.J.
The parties, children of the deceased, claimed a piece of property formerly belonging to the deceased. The Administrator General is the plaintiff in form only, belonging the action in court for instruction on the question of which of the disputants should receive the property. Mohamed Hussein claims the property by way of a deed of gift, made to him by the deceased, his father, in 1960. The deed gift was duly witnessed, but the deceased died without registering it as required by Zanzibar law. Mohamed’s sister argued that the gift was invalid for non-registration, and therefore that the property was properly part of the deceased’s estate, to be distributed among all the heirs.
One Ahmed Juma testified that he had been a tenant on the property since 1960, that the deceased in 1960 told him that he had given the property to his son and that the rent should thenceforth be paid to the son, and that he had since that time paid the rent to the son who issued receipts in his own name. One of the witnesses to the deed of gift testified as to its genuineness. The parties were Muslims, members of the Shia sect.
HELD:-
1. The validity of gifts and the distribution of estates is governed by Muslim law, where the deceased was a Muslim. “In civil matters the law of Islam is and is is hereby declared to be the fundamental law of the republic, under Cap. 3, s.7.
2. Mulla’s Principles of Mohammedan Law, para 150 (3), states: “If it is proved by oral evidence that a gift was competed as required by law, it is immaterial that the donor has also executed a deed of gift, but the deed has not been registered as required by the Registration Act.”
3. According to Shia Law, the requirements for a valid gift are:-
(a) A declaration of the gift b y the donor;
(b) An acceptance of the gift by the donee; and
(c) A delivery of possession to the donee. Since these requirements were complied with here, the gift was valid, and Mohamed Hussein is entitled to the property.
7. SHABANI v. SOFIA (1971) HCD 5 -/11/1970 - Kwikima, AG. J.
The respondent who used to live in concubinage with the appellant’s father sued the appellant for compensation of shs.9.120/= for evicting her from the deceased’s house which she used to occupy in his lifetime. The primary court dismissed the claim because the respondent and the deceased were Muslims and according to Islamic law, a concubine has no right to inherit part of the estate which a legally wedded wife is entitled to. Even under Chagga law which could be applicable were the respondent married to the deceased, Chagga widows do not inherit when there are male issues surviving as in this case. The district magistrate felt that the respondent was entitled to some of the estate after staying with the appellant’s father for 19 years and awarded her a quarter of the amount claimed.
HELD:-
1. With due respect this decision cannot be in accordance with the law. In suing the appellant, the respondent necessarily meant that the appellant had wronged her by depriving her part of the inheritance. How could this be if she was not entitled to any? Both Chagga and Islamic law exclude her from inheriting. According to Chagga law, she would not inherit in the presence of the appellant even if she was legally wedded to the deceased. She could not inherit under Islamic law either, being only the concubine of the deceased.
2. As this suit is not an administration of deceased’s estate matter, the appellant cannot be sued by the respondent. “Compensation” is payable by the husbands who divorce their wives or men who forsake their concubines with whom they have worked together and accumulated some wealth to be shared. In this case the appellant was the son of the man who kept the respondent as his concubine. The respondent could not therefore be heard to sue him.
3. Appeal allowed.
8. MANYASA v. MWANAKOMBO (1971) HCD 13- 20/10/1070 - Georges, C.J.
A divorced wife sued the husband for maintenance of three children. The husband died before the case was finalized. The district magistrate substituted the surviving widow for the deceased husband and made an order of maintenance against her at the rate of shs.50/= per month. On appeal, the learned judge set aside the order because the liability for maintaining the children of the broken marriage rested on the deceased husband and not on his surviving widow. The judge however, awarded the children a house allegedly owned by the deceased. When the divorced wife sought to execute the order, a claimant appeared who asserted that the house was his as it had been transferred to him years ago b the deceased. The chief Justice in this Inspection Note outlined the proper procedure to be followed,
HELD:
1. The divorced wife should have been advised to apply for execution under the MCXA [Civil Procedure in Primary Courts] Rules, 1964, s. 58. The Claimant could then appear and show cause why he should not be evicted. If the court rejects the claim, then the matter would be at an end, the order executed. If the court holds that the property in fact belongs to the claimant, then the divorced wife can appeal if she wishes.
9. IN RE: SALUM OMARI MKEREMI (1973) LRT 80, Mfalila, Ag. J. 14/5/1973.
1. The Law applicable to a “deceased native’s estate” [under Cap 30] is the tribal customary law of the deceased unless he had professed the Mohammedan religion and the court is satisfied from the written or oral declaration of the deceased, or his acts or manner of life, that he intended his estate to be administered according to Mohammedan law.
2. The deceased manner and way of life was far removed from his tribal customs, consequently the deceased estate should be administered in accordance with Mohammedan law of succession and not Hehe customary law of succession.
3. A Christian widow can inherit in the estate of her deceased Mohammedan husband and take 1/8th share as provided for by Mohammedan law as long as their marriage was one recognized under that law. [Administrator-General applied u/s 88(1) (b) of Probate and Administration of Estates Act.]
Page 354 of the HCD Casebook: Mrs. Nelly Mkeremi according to the above para. is Kitabia, therefore her civil marriage under the Marriage Ordinance to the deceased was a valid marriage recognized by Mohammedan law. She is therefore a “wife” under that law. If this is so then she is entitled to her share as a wife in the deceased’s estate. MULLA:- P. 234, Para. 259:
“a Mohammedan may contract a valid marriage not only with a Mohammedan women, but also with a Kitabia, that is a Jewess or a Christian, but not with an Idolatress or a fire-worshiper.”
s.19 (4) of JALO? Or Probate? - Notwithstanding any tribal or Mohammedan law to the contrary (b) a person shall not be deprived of a right to succession to property by reason of that person having renounced or having been excluded from the communion of any religion.
10. MANUGWA LUTALAMILA & 2 ors. V. MARTHA LUTALAMILA (1982) TLR 98 – Mfalila, J.
See MCA, sec. 320/1964.
1. In the administration of estates where the law applicable is customary law the Chief Justice is empowered u/s 14 (2) of MCA, 1963 to confer jurisdiction upon Primary Courts to administer the same.
2. Where the matter in issue is inheritance in customary law, then irrespective of the nature of the property involved, the Primary Court has jurisdiction unless the High Court has directed under section 88 of the Probate and Administration Ordinance that the provisions of that ordinance shall apply to the estate in question.
3. Under s.57 (1) of MCA, 1963 THE District Court is denied original jurisdiction to determine a matter of inheritance arising out of customary law.
4. The District Magistrate was wrong in declaring the proceedings in the Primary Court null and void and quashing them; he should have decided the appeal on merits. Order accordingly.
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