MZUMBE UNIVERSITY

FACULTY OF LAW

NAME: SARAFINA S. MSALIKE.

REGISTRATION NUMBER: 1236157/T.20

COURSE: BACHELOR OF LAWS.

COURSE CODE: LAW 124

COURSE NAME: LAW OF CONTRACT ONE.

TASK: INDIVIDUAL ASSIGNMENT.

LECTURE NAME MR.SHAIBU.

SUBMISSION DATE: 05th Jan.2021.

QUESTION:

With the aids of legal provisions law and decided cases trace historical background of
customary contract in Tanzania, in your discussion state their current legal status
 TABLE OF CONTENTS.

1.0. INTRODUCTORY PART.

1.1. Concept of Customary Laws.

1.2. Concept of Contract.

1.3. Concept of Customary Contracts

2.0. SCOPE OF THE QUESTION

2.1.The question need the historical background of Customary contracts in

Tanzania and its current legal status.

3.0. MAIN BODY.

3.1. Historical background of Customary contracts in Tanzania.

3.2. Current legal status of the Customary contracts in Tanzania.

4.0. CONCLUSION.

5.0. REFERENCES.

5.1. STATUTES.

5.2. CASE LAWS.

5.3. BOOKS.

5.4. ONLINE SOURCES.

1.0. INTRODUCTORY PART.

1.1. CONCEPT OF CUSTOMARY LAWS.

Customary Laws is established under Section 9 1Customary Laws is a set of rules

developed through customs practices and usage of Tanzania ethnic tribes and they are
accepted by Tanzania as binding rules.

1.2. CONCEPT OF CONTRACT

Contract is an agreement between private parties creating mutual obligation enforceable by

Laws. The basic elements required for the agreement to a legally enforceable contract are;
Mutual assent expressed by valid offer and acceptance ,adequate consideration, capacity and
legality.

Section 2(1)(h) 2contract mean agreements that are capable of being enforced by laws.

1.3. CONCEPT OF CUSTOMARY CONTRACTS

Customary contracts are one among the contracts applied in Tanzania , they are well
applicable in a condition that such contracts are not inconsistent with the constitution and other
written laws and thus has been well exemplified by different court decisions and provision of
some statutes.(General principles of contract in East Africa.)

For instance in the Case of

MAAGWI KIMITO V. GIBENO GWEREMA.

The Court of Appeal in in Tanzania held that

“Customary Laws of the Country now have the same status as any other Law subject only to the
constitution and other statutory Laws that may provide to the contrary .”

1
The Judicature and Application of Laws Act Cap 358[R.E 2019](JALA)
2
The Law of Contract Act of 2019(L .C.A)
2.0.SCOPE OF THE QUESTION .

The question needs the historical background of Customary Contracts in Tanzania and its
current legal status .

3.0.MAIN BODY.

3.1. HISTORICAL BACKGROUND OF CUSTOMARY CONTRACT IN TANZANIA.

3
The development of customary contracts in Tanzania can be traced as far back as during the
period of Feudalism where surplus started to be produced a thing that encourage exchange at a
lager extent. The exchange were in terms of barter system or sale or another type of exchange
which were legally binding according to customs, usage or rule of a given community or tribe.
Hence the historical background of Customary Contracts in Tanzania.

3.2. CURRENT LEGAL STATUS OF THE CUSTOMARY CONTRACTS IN

TANZANIA.

Customary contracts in Tanzania have also legal status in Tanzania .There are various Laws in
Tanzania which show the application of Customary Contracts and their current legal status
within the country. Such Laws are as follows;

 The Magistrate Court Ac JALA t of 2019(M.C.A)

Section 18(1)4provide for the application of Customary contracts or Laws in Tanzania where
it makes and gives the power and jurisdiction the primary courts in making decisions.

 The Judicature and Application of Laws Act (JALA)

Section 11(1)5Allows the application of customary contracts in civil matters

Such as marriages, inheritance, child adoption, divorces, contracts and others so on.

 The Land Act of 2019.

3
Nditi, N. (2004)General Principles of The Contracts in East Africa :Dar es salaam; Dar es salaam University Press.
4
The Magistrate Court Act of 2019 (M.C.A)
5
opcit
 Section 180(1)6Customary Laws also is applicable in implementing, interpreting ,and
determine disputes about land arising.

 The Law of Marriage Act of 2019

Section 10(2),13(1) and 157allow men to contract polygamous marriages and permit the
marriage of 15 years old while the minimum age for boys is 18years old.

 The Village Land Act of 2019.

This also provide for the application and show the current legal status of the Customary
Contracts in Tanzania. It is due to the fact that The Village Land Act of 2019 also deals with
the civil matters which is the Land disputes in the villages.

Example in the case of;

Holaria Pastory Vs. Bernado Ephrahim

8
In this case, the woman Holaria Pastory had inherited some clan land from her father by valid will. She
decided to sell the clan land then Bernado Ephrahim the member of the clan praying for declaration that
the sale of the clan land was void under the Haya-Customary Law-For females have no power to sell the
clan land” Hence the application of customary laws in Tanzania.

4.0. CONCLUSION.

In conclusion, the Customary Law has got equal status like any other Laws but what to note is
that Customary Laws deals with only civil matters and not Criminal. Such civil matters are like
contracts, marriages, inheritance and others

6
The Land Act [Cap 113 R.E 2019]
7
The Marriage Act[R.E 2019]
8
Holaria Pastory Vz. Bernado Ephrahim
5.0. REFERENCES.

5.1. STATUTES.

 The Law of Contract Act.

 The Magistrate Court Act.
 The Judicature and Application of Laws Act.
 The Land Act.
 The Village Land Act.
 The Law of Marriage Act.

5.2. CASE LAWS.

 Maagwi Kimito Vs. Gibeno Gwerema.

 Holariaa pastory Vs. Berbado Ephrahim.

5.3. BOOKS.

 Nditi, N. (2004) General Principles of Contract in East Africa: Dar es salaam; Dar es
salaam University Press.