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the fact that the dowry had not been fully paid did not affect the validity of the revocation and the oral divorce was rescinded.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.