CUSTOMARY LAWS IN TANZANIA

The Tanganyika order in council of 1920 required the governor when making Ordinances, to respect
existing native laws and customs provided they were not opposed to justice or morality as per
Article 13(4) of the Tanganyika Order-in-Council, 1920.
Also every court was called upon, in all cases to which natives were parties to be guided by native
law so long as it was applicable and was not repugnant to justice and morality or inconsistent
with an Order-in-Council or Ordinance or any Regulation or Rule made under any Order-in
Council or Ordinance as per Article 24 (a) of the Tanganyika Order- in-council of 1920
-Moreover, the courts were required to decide cases to which natives were parties, according to
substantial justice without undue regard to technicalities of procedure and without undue
delay.
Basing on the Order-in-Council, 1920, one may argue that customary contracts were recognized and
could be enforced in the courts provided they did not go against the provisions of the existing
law and were not repugnant to justice or morality.
In 1963 under section 14(1) of the Magistrates' Courts Act of 1963, primary courts were given
general civil jurisdiction over causes of action governed by customary or Islamic law, and
certain other matters in respect of which jurisdiction was
specifically conferred by statute.
Therefore relevant customary law must be applied if it is applicable and is not repugnant to justice
or morality or inconsistent with any written law as explained

EXAMPLE OF THE CASESES CONCERNING CUSTORMARY LAW

CASE 1

MTATIRO MWITA V. MWITA

MARIANYA(1968) H.C.D. n. 82.

FACTS
Plaintiff received one bullock from defendant in exchange for some finger millet.
The bullock died two months later of unknown causes. Both parties belong to the
Kuria tribe, and this type of contract is well known in tribal custom. The custom is
that if an animal so exchange for millet dies within one year, the meat and skin
may be returned to the other party who is then obliged to replace the animal.
Plaintiff followed this procedure and then brought this suit for another bullock.
The primary court failed to follow the customary rule and decided for the defendant citing Tarime
. District Court Civil Appeal No. 4 of 1966, in which district court refused to follow the custom.

HELD
(1) “If persons of the same tribe enter into an agreement well known
to tribal custom under which the terms are prescribed, these persons must, in the
absence of evidence to the contrary, be understood to be contracting in accordance with these ter
ms.”

(2) Relevant customary law must be applied if it

is”……applicable and is not repugnant to justice or morality or inconsistent with
any written law.” The rule in question here is a simple one; it does not take account of the fact
that death may be due to the fault of the person receiving the
animal But this is not to say that it is repugnant to justice or morality, and it certainly is not inc
onsistent with any written law. No evidence was presented to indicate that plaintiff was in any w
ay at fault in the death of the bullock. Decision for
plaintiff. The Court stated, obiter; If it were proved that the animal had died due to
the neglect of the person receiving it, “….. the Court, while upholding the rule,
could find that the facts did not fall within its purview, as good faith and the customary standard
s of animal husbandry must be implied as the basis of the agreement.

CASE2

FADHILI V. LENGIPENGI(1971)H.C.D. n. 31.

March 06, 2021

FACTS
The appellant successfully sued for domestic animals and the offspring entrusted to the respondent by the
deceased appellant’s mother. The District Court allowed the appeal of the respondent on the grounds that:
(1) the appellant sued only after his mother‟s death and not during her lifetime. The suit must have been
based on “retold history from the neighbours.” And anyway the respondent had reported the death of all
the animals to the deceased when she was still alive.
(2) The claim could not be sustained “without documentary evidence and without eye witnesses to say that
the goats and sheep did not die and that the appellant did not report.”

HELD
(1) “With due respect to the learned District Magistrate, his reasoning is bad at law. The court which heard
the witnesses found that the respondent had received the stock from the appellant‟s deceased mother and
had kept it till her death. If the animals had died while in the appellant‟s custody, the trial court found it
improbable that the deceased had been informed. After all it is easy to allege things in respect of deceased
persons since these persons cannot be called to refute them.”

(2) “In African custom business is transacted without documents. Writing as such is an innovation which is
only familiar to the sophisticated young who have had an opportunity to receive coaching in the ways of the
Whiteman. The appellant cannot be blamed for not acting during his mother‟s life, either. The reason is
simply that the animals then belonged to her and any claim by the appellant would not have been entertained
in a court of law. The appellant had capacity to sue for the animals after inheriting the from his mother.

(3) Appeal allowed.

CASE 3
Court name
High Court of Tanzania
Francis Adolf vs Ibrahim Mustafa () [1989] TZHC 46 (20 November 1989);
Law report citations
1989 TLR 219 (TZHC)
Media neutral citation
[1989] TZHC 46

Moshi, J.: The appellant, Francis Adolf, successfully sued the respondent, Ibrahim Mustafa, at Katoro
Primary Court for a shamba worth Shs. 20,000/=. G
The respondent had, in a written agreement, pledged the shamba to secure a loan of shs.20,000/= from the
appellant on 12/11/85. The agreement was witnessed by not less than four persons, as well as their ward
CCM office. It had provided that the shamba H would become the property of the appellant if the loan was
not paid by 30/5/86. By 30/5/86 the loan remained unpaid, and for several days thereafter, the whereabouts
of the respondent was unknown. Hence the suit for the shamba filed on 24/6/86.
On the hearing day, the appellant and his witnesses were present in court, whereas the I respondent, who
was duly served to

appear, failed, for unknown reasons, to enter an appearance in court. The trial court then A heard the
appellant and his witnesses, and pronounced judgment in his favour.
Consequent upon a complaint made by the respondent at Bukoba District Court on 22/9/87, the District
Court called the trial court record for inspection. In a revisional B order dated 17/11/87, the District Court
found that the suit before the trial court ought to have been for the loan, and not for the shamba, and further
that the Primary Court could not have had jurisdiction to try the case in view of the provisions of section
18(1)(a)(iii) C of the Magistrates' Courts Act 1984, since the loan of shs.20,000/= exceeded its pecuniary
jurisdiction. The trial court proceedings were declared null and void, and the appellant was directed to file
a suit for the loan, if still unpaid, before a court of competent jurisdiction. Hence this appeal.
While admitting the appeal my brother Munyera, J. minuted: D
DR
Admit to consider the jurisdiction of the trial court. What is a customary law transaction or a contract in
general law? E
It seems to me, and I am certain Munyera, J. had this in mind, that the one issue on which this appeal must
stand or fall is whether the transaction between the parties was a customary law one or one based on the
general principles outlined in the Law of F Contract Ordinance. This question is vital in that in the event
the transaction is found to have been a customary law one, the decision of the trial court, as against that of
the District Court, would carry the day, and vice-versa.
With respect, I am satisfied that the transaction between the parties was a customary law G one. Georges,
C.J. as he then was said in Mtatiro Mwita v Mwita Marianya [1968] HCD 82, that:
If persons of the same tribe enter into an agreement well known to the tribal custom under which the terms
are prescribed, these persons must, in the absence of evidence to the H contrary, be understood to be
contracting in accordance with these terms.
In our case, both parties are of Haya tribe. Under Haya law, a shamba may be pledged on condition that it
will become the property of a creditor failing repayment of a debt on I an agreed date. The transaction had
received the necessary publicity - the witnesses and

involvement of the CCM office. I have found no evidence to the contrary, and I am A satisfied, and hereby
find, that the parties had transacted under their customary law dictates.
It is law that where money is loaned upon a pledge of property on condition that the property becomes the
property of the pledgee if the loan is not repaid within a B prescribed time, the pledgee has a right to resort
to the courts for the enforcement of the agreement by suing for the property on the basis of the agreement.
This is exactly what the appellant had done, in the Primary Court. There was no evidence that the sum
secured was much less than the value of the shamba, in which case the trial court would C have been
empowered to order the sale of the shamba, instead of its transfer to the appellant, and the surrender back
to the respondent the money in excess of the secured loan. In our case, we are told that the value of the
shamba was equal to that of the sum loaned. For the foregoing reasons, and with respect, I am satisfied,
and hereby find, that D the District Court erred in law in reversing the decision of the trial court, and in its
finding that the trial court had acted without jurisdiction.
In the event, I allow the appeal with costs, quash and set aside the District Court judgment and its orders,
and hereby restore in full the Primary Court decision. E
Appeal allowed.

F
________________

CASE 4
Court name
High Court of Tanzania
 Dotto D/O Rubera vs Clement S/O Mhigi () [1987] TZHC 37 (14 October
1987);
Law report citations
1987 TLR 126 (TZHC)
Media neutral citation
[1987] TZHC 37

Coram

Mwalusanya, J.

Mwalusanya, J.: The appellant in this appeal Dotto d/o Rubera successfully sued the G respondent Clement
s/o Mhigi at Burizayombo Primary Court in a claim of refund of 13 heads of cattle under Sukuma
customary law. The appellant is the aunt of the respondent in that the mother of the respondent one Kulwa
d/o Rubera (PW.2) is a twin H sister of the appellant. The respondent is an illegitimate child of this Kulwa
d/o Rubera.
Sometime back, about 20 years ago, the respondent wanted to marry, but he had no father to provide him
with the dowry cattle. His mother Kulwa d/o Rubera (PW.2) went to ask her twin sister, the appellant, for
some cattle on that she could give the same to I her son to marry. The appellant was kind enough, as she
gave out 13

heads of cattle to Kulwa d/o Rubera who in turn gave them to the respondent for A marrying. The
respondent duly got married and has children of his own.
Just recently it is said the respondent began to despise and quarrel with his mother and appellant. In other
words he has decided to kill the goose that lays the golden egg. It is B said that he has completely cut off
from his mother and appellant and that he provides them with no assistance despite their old age. When
respondent had his three daughters married, he had no courtesy to inform his mother and the appellant. So
the mother and the appellant are fending for themselves. Then there came a time when an insult
was C added to an injury. It is said there was a piece of land which appellant and PW.2 had given to one
of their sons for use, so that the crops from the shamba could help them. However respondent left his
home in Sengerema District to go to claim that piece of land in Biharamulo District. He sued that boy in
court, arguing that his mother and the D appellant had no title to pass to the son they had given him. We
do not know who succeeded in that case, but that was the bitter pill that appellant and PW.2 could not
swallow and the suit they filed.
There was the issue raised at the District Court, which was not dealt with by the trial E court, about
the locus standi of the appellant who preferred the suit, as she was not the one who had personally handed
over or given the cattle to the respondent. It was the respondent's mother PW.2 who had handed over the
cattle to the respondent. In my view the District Court was right that the appellant was privy to the
contract under F Sukuma Customary law, even if she was not the one who had personally handed over the
cattle to the respondent. In fact that was a non-issue at the trial, as it was common knowledge that under
Sukuma customary law, on the facts as presented, the appellant was privy to the contract and had a locus
standi to prefer the suit. We should always G be wary not to introduce any notions of foreign law in our
customary law. However reprehensive the customary law may be, it is not for the courts to change it, but
for the customary law community concerned to do it. Therefore the trial court was right to be H silent on
this issue, as it was conceded that the appellant indeed had a locus standi.
Now let me go to the matter in controversy. It was conceded at the trial that under Sukuma Customary
Law it is proper for a parent or near relative to claim back anything given to a child, who later 'sins' against
the donor. However, it is stated that the 'sins' I must be grave enough for such a drastic step to be
taken. The trial
magistrate together with the two assessors were of the unanimous view that the 'sins' A which were
committed by the respondent were grave enough to justify the appellant to prefer the claim; and
accordingly judgment was entered in favour of the appellant.
The respondent appealed to the District Court he was successful. The learned District B Magistrate called
her own assessors who advised her that under Sukuma Customary Law only two 'sins' justified a parent to
claim back what he donated to his son, and those were witchcraft directed at the donor and assaulting the
donor. As the sins which the respondent had committed were not among those recognized ones, the
District Court C held that the claim should fail.
In my considered view, the learned District Magistrate was wrong to enlist the help of assessors at the
District Court under s.9(3) of the Magistrates' Court Act No. 2 of 1984. According to my understanding
such provision should only be invoked when the D District Court hears a case in its original jurisdiction or
when hearing an appeal in case where the trial court omitted to consider a matter of customary law. It will
be appropriated that if a District Court calls its own set of assessors on a point which was decided by
assessors at the trial court, there would be chaos, as has happened in this E case. So on that ground, my
interpretation of the section in question, is to be preferred. The District Court should only have reviewed
the decision of the trial court without enlisting the help of the assessors. So on that ground alone, the
decision of the District Court must be faulted. F
And as a matter of principle I think the opinions of the assessors of the trial court are responsible and to be
preferred. What the Sukuma customary law stipulates is that the 'sins' should be grave enough so as to
justify claim of a refund from a delinquent child. G It would be anamolous if the sins recognized, were
only witchcraft and assault of the donor, while such grave sins as committing adultery with the donor's
wife or stealing huges sums of money or cattle from the donor were omitted. That cannot be the Sukuma
customary law for which much credit is given to the wisdom of the Sukuma ancestors. H
In the event this appeal is allowed. The decision of the District Court is set aside and that of the Primary
Court is restored. Order accordingly.
I Appeal allowed.

CASE 5

Court name
High Court of Tanzania
January Mayala vs Mazige Mkangala () [1984] TZHC 38 (15 September
1984);
Law report citations
1983 TLR 268 (TZHC)
Media neutral citation
[1984] TZHC 38

Coram

Katiti, J.
Katiti, J.: Mazige Mkangala, the respondent herein filed an action in Ilangala Primary Court, against
January Mayala the appellant herein, claiming a restitution of a hand-saw, G or Shs. 2,400/= the value
thereof, that he had by written agreement between him and the appellant on hire for Shs. 150/= for one
month, given to the appellant, who claimedly failed to give back the same, after the said agreed upon
period. This action was unanimously dismissed with costs by the trial Court, although the appeal was
partly H successful, and the District Court, while sympathising with the appellant, ordered that the
appellant compensate the respondent Shs. 1,200/= part of the value of the hand-saw - hence this appeal
challenging the award.
This case does cover a compass that is both narrow, with facts not seriously contested. I It cannot be
denied, that the appellant did on hire

and agreement take the respondent's hand-saw, for use as from 17/9/1980, but A returnable on or by
20/10/1980. It is also very true that the said hand-saw was never returned on this stipulated day, or
beyond. The appellant was straightforward in his defence supported by witnesses in saying, that while he
was on his errands for work, in a canoe in which the hand-saw and other work-implements had been
loaded, on Lake B Victoria, the lake suddenly got violent and lost temper, their canoe unfortunately
capsized, and everything including him, were thrown into the lake. And that, while he was fortunate to
come out alive, he could not recover the property that included the hand-saw. C
Was the appellant liable? On the evidence, as I see it, that the hand-saw was lost in the manner narrated by
the appellant cannot be challenged. Again on this evidence, negligence cannot be imputed on the appellant
to attract attachment of a suitable civil wrong. Again on the evidence, no evidence exhibiting that under
the customary law of the area, if any, the circumstances of the case, did give rise to an actionable wrong,
was D adduced, nor did the respondent place limitation on the use and place of the said hand-saw, so that
the breach of which could attract civil liability. In my view the whole episode was an accident and an act
of God over which the appellant had no control; no power, no discretion, and no amount of cautious
human care, could change the said course of event. Unless it is a question of strict liability which has not,
been established E under Customary Law. It is my view that civil liability must be based on proven
actionable faulty deviation from an expected, and accepted standard of conduct by the defendant and not
on acts of God, over which man has no governance. Such being the F case, I am of the view that
unavoidable accidents - acts of God - should not give rise to civil liability against the victims thereof. In
this case we cannot say the appellant provoked the lake tempers, and we should not punish the appellant,
because the consequences of these tempers were to throw him into the lake waters and thus lose a hand-
saw. While I do sympathise with the respondent for the loss of the hand-saw, I G find the cause of action
unestablished. The appeal is therefore allowed with costs, and the judgment of the District Court reversed,
and the judgment of the Primary Court reinstated. H
I Appeal allowed.