HINTS

INTRODUCTION

 Meaning of the Law.

 Meaning of The judicature and Application of Laws Act (Cap.358 R.E 2019) and its short
history in Tanzania mainland.

 Meaning of Legislation.

MAIN BODY

It will show the way how Judicature and Application of Laws Act (Cap.358 R.E 2019) act as the
guiding Legislation on the sources of law in Tanzania mainland whereby the points will be the
following:

1.1. Through Customary Law

1.2. Through Received Law

1.3. Through Islamic Law

1.4. Through statute

CONCLUSION

It will focus on providing the general comment of the work and the suggestions also will be
provided at this part.
INTRODUCTION

Meaning of Law

Law is a system of rules of social behavior. Rules are generalizations that is general statements
on human behavior in a given situation. Rules are general because they do not deal expressly
with a single person, but with a group of human beings 1. Obviously in these cases we have
different levels of generalization. A rule can be general even in the case that is in the last resort,
related to a single person, for example, rules concerning the office of the president of the United
Republic of Tanzania. They do not mention His Excellency Mr. Benjamin William Mkapa but
are related to the office of the President the bearer of which can be everyone corresponding to
the rules of the constitution and the Presidential elections. One of the main features of law is
normatively2.

Meaning of JALA

The Judicature and Application of Laws Act [Cap.358 R.E 2019] this is the Act that defines the
jurisdiction of the High Court and makes provisions with respect to the application of selected
foreign law and customer’s law of Tanzania. It provide that the High Court shall be the court of
Admiralty and its jurisdiction shall extend to the territorial water. Common Law, doctrines of
equity and statutes of general application of England shall be in force in Tanzania only so far as
the Circumstances of Tanzania and its inhabitants permit, and subject to such qualifications as
local circumstance.3 subject thereto and so far as the same shall not extend or apply, shall be
exercised in conformity with the substance of the common law, the doctrines of equity and the
statute of general application in force in England on the 22 July 1920,and with the powers vested
in and according to the procedure and practice observed by and before Court of justice and
justice of peace of the peace in England according to their respective jurisdiction and authorities
at that date, save in so far as the said common law doctrine of equity and statutes of general
application and the said powers, procedures and practice may at any time before the date on
1
Legal method part two By Robert V.Makaramba LL.B, LL.M.pg.5.

2
Ibid.pg.no7.

3
www.ecolex.org
which this Act comes into operations, have been modified, amended or replaced by other
provision so as to fit users.4

Meaning of Legislation

Legislation means a law or set of Laws suggested by a government and made official by a
parliament5.Or Legislation also known as statutes or Acts of Parliament is the written law created
by parliament. It is one of the two primary sources of the law (the other being the case law from
the decision made by Court).6

MAIN BODY

Judicature and Application of Laws Act tend to be the guiding legislation on the sources of law
through the following sources of law provided in the Judicature and Application of Laws Act
(Cap.358.R.E 2019):

1.1. Through customary law

Customary law is defined in the interpretation of Laws and General clauses Act of 1972 to mean
any rule or body of rules where rights and duties are acquired or imposed, established by usage
in Tanganyika and any African community in general as having the force of law, including any
declaration or modification. Hence The Judicature and Application of Laws Act through section
11(1)7 act as guiding legislation on sources of Law in Mainland Tanzania, but customary law
cannot be applied to the people or member from different community according to section 11(1)
b of JALA8.Through JALA different laws related to customary law tend to be used as the law in
Tanzania mainland. For examples of decided cases by using The Judicature and Application of
Laws Act in Tanzania mainland include the following:

(a)Mahagwi Kimito vs Gibeno Werema [1985] TLR pg.132.

4
www.tanzanialaws.com.

5
dictionary.cambridge.org.

6
studyguides.lib.uts.edu.au

7
The Judicature and Application of Laws Act [cap.358 R.E 2019]

8
Ibid
The material fact of the case was about bride price where by the case decided by using
customary law because was about the issue one tribe of Kurya. Hence the case was decided by
using customary law as it provided in The Judicature and Application of Laws Act (JALA).9

(b)Robert Lugakingira v. Ronald Lugakingira (1967) HCD10

Material fact of the case was the issue of succession, where by the decision was made by
considering Haya customary law because both were from one community and one tribe of Haya
and there was no any conflicting issue between customary law and the law of the state.

Conditions for the applicability of customary Law

(1)It is applicable in matter of a civil nature not criminal matter. For example in the case of
Mahagwi Kimito vs Gibeno Werema was the matter of civil that's why customary law was
applied in this case.

(2)It is applied between members of the same community. For example in the case of Mahagwi
Kimito vs Gibeno Werema both were the member of the same tribe of Kurya that's why
customery law was applied in deciding the case.

(3)It is applicable in the matter of inheritance.

(4) Applicable in the matters of Bride price especially cultural marriage as it was in the case of
Mahagwi Kimito vs Gibeno Werema where by demanded bride price to be returned back

1.2. Through Received Law

Is that law which was imposed by the British colonizers on our country? English law was
"received" in the territory of Tanganyika by virtue of the "reception clause" in the Tanganyika
order-in-council of 1920.This order acted as a conduit for the general reception into Tanganyika,
of the common law, doctrine of equity and statutes of general application in force in England on
the 22nd of July 192011.

9
TLR.pg.132.

10
Case of (1967)HCD.

11
JALA(Cap.358.R.E 2019)pg.4,5.
Conditions for the applicability of Received law include the following:

•There must be Lacuna (law gape) to be filled by the received law. So where there is law gap in
our law received law must be applied. For example in the case of R vs. Emmanuel Timothy
[1980] TLR pg.322.where in our law lacked the punishment provided to the crime committed by
Emmanuel Timothy, hence judge Samatha directed a magistrate to use received law where he
said that where there is a lacuna received law is applied so go and use common law to decide.12

•Doctrine of estoppel (Where our local circumstances permit as it was in the case of Athuman
Issa Tojo vs R.

•Subject to qualification or modification.

1.3. Islamic Law

In Tanzania the body of Islamic personal status law is applicable in matters relating to marriage
and divorce, succession and waqf. There exist specific sectarian legislations which make the
application of Islamic law in these matters to the part of population that profess Islam. In case of
a conflict between state law and Islamic law, state law prevails. Within Islamic law there are four
classical sources of the law namely, the Quran, the Sunna or Hadith of the
prophet,Qiyas(Analogy) and Ijma(Consensus)13.Islamic Law applied in matters relating to
marriage and divorce, succession and waqf and similar matters in relation to members of a
community which follows that law14.It is provided under section 11(1)(c)(ii) of JALA(Cap.358
R.E. 2019)15.

1.4. Through statute

Statutes are enacted by the legislative arm of the state and interpreted by the judicial arm.The
legislature in Tanzania is the National Assembly (parliament). Parliament passes pieces of

12
TLR.pg.322

13
Robert v Makaramba LL.B,LL.M.Legal method part two.pg 30.

14
JALA.section 11(1).(Revised Edition 2019).

15
Ibid.pg.no 8,9.
Legislation which are then assented to by the president before they became law. Types of
statutes include:

(a)Principal legislation is the statute which is passed by the parliament itself.

(b) Subsidiary legislation these are pieces of legislation that are made by administrative officers
with delegated legislative powers. Hence those sources of law provided in the JALA is the
sources of law provided in the JALA to act as a guiding legislation16.

CONCLUSION

In generally, The judicature and Application of Laws Act played the great as the guiding
legislation on the sources of law in Mainland Tanzania through the above points provided in the
Main body and it's evidence of being used to decide different cases to prove JALA being used as
a guiding legislation on the sources of law in Tanzania mainland. In additional another sources of
Law include constitution because in Tanzania is the mother law of all Laws so JALA by being a
law, all law provided and it's applicability must match with constitutions.

BIBLIOGRAPHY

16
Ibid.
LEGAL MATERIALS

Robert V.M.Legal method part two.

STATUTE

The Judicature and Application of Laws Act (Cap.358. R.E 2019).

ONLINE MATERIALS (WEBSITES)

www.ecolex.org

www.tanzanialaws.com

CASES

Tanzania Law Report (TLR)

High Court Digest(HCD)