Robert F. Lugakingira v. Leonard F. Lugakingira, (LC) Civ. App. 13-D-63; -/6/67; Hamlyn, J.

Robert F. Lugakingira v. Leonard F. Lugakingira, (LC) Civ. App. 13-D-63; -/6/67; Hamlyn, J.

This action concerned the division of a house and plot among the heirs of deceased. The appellate court which first heard the case conceded that according to Haya customary law, the house and property were to be physically divided among the heirs. However, the court noted that the dispute had led to much animosity among the claimants and that criminal proceedings had arisen from the quarrels. Therefore,

The court decided that a “new remedy” was required and ordered that the property be sold and the proceeds distributed to the claimants.

            Held: Customary law originates from the repetitive decisions of persons who, by general consent, act as arbiters. As conditions change, new concepts may replace the old in such decisions. Citing Cory and Hartnoll, Customary Law of the Haya Tribe, introduction; Kabaka v. Kitonto, (1965) E.A. 278. However a custom derives its validity from the assent of the vative community, and changes may not be imposed by a court of law. Citing Eskugbayo Eleko v. Nigeria Government, (1931)  A.C. 662, 673; Marko Kajubi v. Kulanima Kabali, 11 E.A.C.A. 34. Therefore, the order of sale was incorrect and the property itself must be distributed.