MAAGWI KIMITO v GIBENO WEREMA 1985 TLR 132 (CA)

MAAGWI KIMITO v GIBENO WEREMA 1985 TLR 132 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Mustafa CJ, Kisanga, JJA

Flynote

C Customary Law - Its status vis-a-vis other law - Section 9 Judicature and

Application of Laws Ordinance, Cap. 453.

Customary Law - Kuria customary laws - Whether widow, sole heir of her deceased

D husband's estate, is liable to pay the debts of her late husband.

Customary Law - Kuria customary law - Liability of a widow, sole heir, to refund

bride price received by her deceased husband - Whether such liability extends

beyond the assets which she actually received in the estate of her deceased husband.

E

-Headnote

The appellant instituted a suit in a Primary Court for refund of thirty six head of

cattle which he had paid in respect of his marriage to one Nyamohanga d/o Makongo

which marriage was subsequently dissolved. The cattle were received by her brother.

By the F time of the suit the brother had died, so that suit was filed against the

respondent, widow and sole heir of the deceased estate in accordance with Kuria

customary law. The appellant was successful in both the Primary and District Courts

though the latter court reduced the number of refundable cattle from 36 to 20. On

appeal to the High G Court both decisions of the two lower courts were overturned

on the ground that the payment, receiving and refunding of bride price is a clan affair

and should not be saddled on a poor widow. On further appeal the Court of Appeal of

Tanzania considered the place of customary laws in Tanzania generally and the

propriety of the High Court decision. H

Held: (i) The customary laws of this country now have the same status in our courts

as any other law subject only to the Constitution and any statutory law that may

provide to the contrary;

(ii) since under Kuria customs the respondent was the sole heir to her

deceased I husband's property and nobody else, likewise she was

1985 TLR p133

NYALALI CJ

liable to pay the deceased's debts; A

(iii) an heir is liable to pay in full the debts which the deceased was liable to

pay;

(iv) it is not only correct in law but proper in principle that the respondent,

who is the sole heir of her deceased husband, be liable to refund the bride price

which her B husband received in respect of the marriage of his sister to the

appellant.

Case Information

Order accordingly.

Case referred to: C

1. Abdallah Kombe v Said s/o Leveri (1962) IX Digest of Appeals from

Local Courts, p.11

Judgment

Nyalali, C.J. delivered the following considered judgment of the Court:- This case

demonstrates how certain principles and rules of African customary law still operate

in D what may be termed as the indigenous and majority African sector of the

community in this country to the exclusion of principles and rules derived from

English Law. The appellant Maagwi Kimito instituted a suit in the Primary Court at

Nyanwigwa in Tarime district for refund of thirty six head of cattle which he had

paid in respect of his marriage E to Nyamohanga d/o Makongo. The cattle were

received by her brother, that is, one Werema s/o Makongo, who is the late husband of

the respondent, namely Gibeno w/o Werema. The marriage between the Appellant

and Nyamohanga d/o Werema was dissolved in court sometime in 1978, after the

death of the respondent's husband. Under F the relevant customary law, the

respondent became her husband's sole heir. So the appellant sued her in her capacity

as such sole heir. He was successful in the trial Primary Court. The respondent

appealed to the District Court at Tarime which upheld the decision of the Primary

Court, though it reduced the number of refundable cattle from thirty six to twenty

(20). She further appealed to the High Court at Mwanza which G overturned both

decisions of the two courts below and gave judgment for the respondent. The

appellant was aggrieved by the decision of the High Court hence this appeal to this

court on a point of law certified under section 4(2)(c) of the Appellate Jurisdiction

Act, 1979. In certifying the matter for appeal to this Court, Munyera, J. H stated,

inter alia:

Under Kuria customs she was the sole heir to her deceased's husband's

property and nobody else is allowed to inherit anything. Likewise she was liable to

pay the deceased's I debts. But the learned appellate judge decided against this

established Kuria

1985 TLR p134

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custom and ruled that the payment of the deceased's debts was a clan affair. The A

applicant was not satisfied and seeks to appeal to C.A.T. I find that there is a question

to be considered by the C.A.T. whether the respondent should be absolved from

meeting the deceased's debts while she is the sole heir of the deceased's estate. I

certify that the intended appeal raises a point of law.... B

In overturning the decisions of the two courts below, the High Court, Mfalila, J.

stated:

The most important point is the question of the appellant's liability in her

capacity as the wife of C the late Werema. The Primary Court as well as the District

Court accepted the advice of the assessors that the appellant was rightly sued for the

return of bride price for under Kuria customary law a widow is responsible for her

husband's debts if she has taken over his D properties. I also agree for it only makes

good sense. But this rule surely must be referring to the debts existing at the time of

death. It cannot include unknown future events, i.e. refund of bride price. The

payment, receiving, and refunding of bride price is a clan affair. Suppose there was

another sister in the late Werema's family and she was to get married, would the E

family allow the appellant to collect the bride price simply because she took

Werema's properties at his death? or would people like her brother-in-law (D.W.2)

Werema's elder brother claim the booly? I cannot imagine the family allowing her to

collect the bride price for F any of the daughters. If she has no right to receive the

bride price for the daughters, why should she have the duty to refund the bride price

of the divorced daughter? Those who would receive the bride price in Werema's

place, should be the people to have the duty to refund the bride price in Werema's

place. This poor widow should not be saddled with payment of family G debt.

Undoubtedly the Learned Judge expressed very strong views and sentiments on the

issue but do these strong views and sentiments reflect the correct legal position on the

H matter? Although it is apparent that the Learned Judge appreciated that this

matter was governed by the customary law of the Kuria community to which the

parties belong, it is not quite clear whether his views and sentiments were derived

from or guided by Kuria customary law and practice.

It must be firmly stated at this juncture that customary law, where applicable, has the

I same status in the courts of this country as any other

1985 TLR 135

NYALALI CJ

law. It is so stated under section 9 of the Judicature and Application of Laws A

Ordinance, Chapter 453 of the Revised Laws which needs to be quoted hereunder in

extenso:

(1) Customary law shall be applicable to, and courts shall exercise

jurisdiction in accordance therewith in matters of a civil nature: B

(a) between members of a community in which rules of customary law

relevant to the matter are established and accepted, or between a member of one

community and a member of another community if the rules of customary law of

both communities make C similar provision for the matter; or

(b) relating to any matter of status of, or succession to, a person who is or

was a member of a community in which rules of customary law relevant to the matter

are established and accepted; or D

(c) in any other case in which, by reason of the connection of any relevant

issue with any customary right or obligation, it is appropriate that when defendant be

treated as a E member of the community in which such right or obligation obtains

and it is fitting and just that the matter be dealt with in accordance with customary

law instead of the law that would otherwise be applicable; F

except in any case where it is apparent, from the nature of any relevant

act or transaction, manner of life or business, that the matter is or was to be regulated

otherwise than by customary law: G

Provided that:

(i) where, in accordance with paragraph (a), (b) or (c) of this subsection

customary law is applicable to any matter, it shall not cease to be applicable on

account of any act or H transaction designed to avoid, for an unjust purpose, the

applicability of customary law; and

(ii) nothing in this subsection shall preclude any court from applying the

rules of Islamic law in matters of marriage,divorce, guardianship, inheritance, waqf

and similar I matters in relation to members of a community which follows that law.

1985 TLR p136

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(2) It is hereby declared for the avoidance of doubts that: A

(a) a person may become a member of such a community as is referred to

in subsection (1), notwithstanding he was hitherto a member of some other

community (and whether B or not any customary law is established or accepted in

such other community), by his adoption of the way of life of the first-mentioned

community as one of themselves, and such adoption or acceptance may have effect

either generally or for particular purposes;

(b) a person may cease to be a member of a community by reason of his

adoption of the C way of life of some other community (whether or not any

customary law is established or accepted in such other community) as one of

themselves, but shall not be treated as having ceased to be a member of a community

solely by his absence therefrom. D

(3) In any proceedings where the law applicable is customary law, the

court shall apply the customary law prevailing within the area of its local jurisdiction,

or if there is more than one such law, the law applicable in the area in which the act,

transaction or matter E occurred or arose, unless it is satisfied that customary law to

be applied is some other law:

Provided that the court shall not apply any rule or practice of

customary law which is F abolished, prohibited, punishable, declared unlawful or

expressly or impliedly dis-applied or superseded by any Ordinance or Act of Tanzania

or Act of the Common- services/Organization.

(3A) Notwithstanding the provisions of this Act the rules of customary law

and the rules of G Islamic Law shall not apply in regard to any matter provided for

in the Law of Marriage Act, 1971.

(4) For the avoidance of doubts it is hereby declared that the reference to

an Ordinance or H Act of Tanzania in subsection (3) shall not include any law or

practice (other than any such Ordinance or Act or Act of the Common Services

Organization) applied to, or I enforceable in, Tanzania in accordance with the

provisions of section 2 of the Indian

1985 TLR p137

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Acts (Application) Ordinance, of subsection (1) of section 2 of the Land (Law

of Property and A Conveyancing) Ordinance, or of subsection (2) of section 2 or

section 7 of this Ordinance, or any English Act declared to be in force by order made

under section 10 of the Land (Law of Property and Conveyancing) Ordinance.

When this appeal came before us for the first time, we called for additional evidence

to B be taken on various pertinent points involved in the main issue as we were

under the impression that the relevant customary law remained uncodified and

undeclared. We were at the time unaware of the Customary Law Declaration, 1963

as well as The Local C Customary Law (Declaration (No.4) of 1963 which are

contained in Government Notice No. 279 of 1963 and Government Notice No. 436 of

1963 respectively. These customary law declarations or statements were made

applicable to members of African Communities in the locality where the parties

belong by Government Notice No. 604 of D 1963 and Government Notice No. 130 of

1964.

Obviously the rules dealing with refund of bride price and those dealing with

inheritance are the ones that concern us here, since the suit is for recovery or refund

of bride price and it was brought against the respondent in her capacity, not as a

widow but as the sole E heir of the man to whom the bride price was paid. The

relevant rule of the issue is Rule 37B of the First Schedule to the Local Customary

Law (Declaration) Order, 1963 which states in Kiswahili:

Mtu anayeweza kudaiwa kurudisha mahari ni yule aliyepokea mahari au

mrithi wake. F

Translated into English, it reads "the person liable to be sued for refund of bride price

is either the person who received it or his heir". It must be pointed out that this rule

is not G superseded by any provision of the Law of Marriage Act, 1971 or any other

statute.

In the case before us, the respondent Gibeno w/o Warema is the sole heir of her

husband who received the bride price in question. She was clearly liable under the

rule to be sued as it was done by the appellant. However, an important point arises,

and that H is whether her liability to refund the bride price extends beyond the

assets which she actually received in the estate of her deceased husband. Under

principles and rules derived from English Law an heir's liabilities are limited to the

assets of the estate which heor she received from the deceased. I

What is the position under customary law?

1985 TLR p138

NYALALI CJ

The relevant rules are found in the Second Schedule to the Local Customary Law A

(Declaration)(No.4) Order, 1963. The relevant rules are reproduced in English

translations by R.W. James and G.M. Fimbo in their book titled Customary Land Law

of Tanzania, First Edition at page 166. These are rules 11, 12 and 13 and they read: B

11. If the intestate's property is not sufficient to pay the deceased's debts

important debts will be paid first and the rest will be paid proportionately.

12. he rest of the debt is satisfied by the heirs from their own property.

13. Claims and debts are inheritable. C

It is clear from these rules, especially rule 12 that an heir is liable to pay in full the

debts where the deceased's estate are insufficient to pay all the debts in full. It is clear

from the provisions of rules 11, 12 and 13 that a three - stages procedure will be

involved in D satisfying the liabilities. Firstly, payment in full is made in respect of

important debts. Secondly, if the important debts are fully discharged from the assets,

the remainder of the debts are paid out proportionately. Thirdly, in any event, the

balance of the debts are paid out in full by the heirs from their own property. This

position is undoubtedly E startling to anyone used to the English system. It

happened to Spry, J. in the case of Abdallah Kombe v Said s/o Leveri in Local Court

Civil Appeal No. 47 of 1962 reported in A Digest of Appeals from Local Court (1962)

Vol.IX at page 11. He was dealing with a similar matter among members of the

Wapare Community.

He stated: F

The assessors who sat with me expressed the opinion that under Pare

customary law, an heir is liable for the debts of his predecessor even though he

inherits no property; and that G such debts will pass from one generation to another

.... Under the provisions of section 15 of the Local Courts Ordinance (Cap 299) the

law to be applied is the customary law prevailing in the area, so far as it is not

repugnant to natural justice or morality. The customary laws to which I have

referred are certainly not repugnant to morality, indeed, I am much impressed by H

the high sense of obligation which they reflect. I think, however that it is repugnant

to justice that a person should be saddled with a debt which he has not himself

incurred, the incurring of which he may not have approved and from which he had

derived no benefit. I think it is I utterly wrong

1985 TLR p139

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that a child may be born with a burden of debt which he may never be able to

discharge. I hold A therefore, that this customary law is one which the Court will

not enforce.

At the time of this decision by Spry, J. the Courts had power to disregard any

customary law which was considered "repugnant to natural justice or morality".

What that meant in B fact was any customary law which was incompatible with the

prevailing English sense of justice or morality. Such power of the Court no longer

exists by virtue of the provisions of section 9 of the Judicature and Application of

Laws Ordinance. The customary laws of this country now have the same status in our

courts as any other law, C subject only to the Constitution and any statutory law

that may provide to the contrary. As James and Fimbo properly point out on page 173

of their book cited above, our codified customary law now constitutes the indigenous

common law of the African communities concerned. D

The principle behind "the high sense of obligation" which much impressed Spry, J. in

Abdalla Kombe's case is one which the people of indigenous African culture of this

country (and perhaps elsewhere in Africa) have always had towards their

predecessors. It is a principle which reflects their need to take care of the interests

and reputations of E their predecessors, not only when the latter are disabled by old

age and when in other cultures of the world such people are regarded only as a

burden fit for old people's homes, but even long after their death. If, according to

Spry, J., it is considered "repugnant to justice that a person should be saddled with a

debt which he had not himself incurred, the incurring of which he may not have

approved and from which he F had derived no benefit", why, one may ask, is it

justified for a person to inherit a fortune from his predecessor for which he may have

done absolutely nothing towards its acquisition?

What justification is there for the world wide practice by which governments incur

national debts which are inherited by the next generation of their citizens? Surely,

the G inheritability of debts under African customary law cannot be considered to

be a human aberration. However, a person is not compelled to become an heir to a

deceased. But once the person accepts to be an heir, the responsibility described

above devolves upon that person. H

In the present case therefore, it is not only correct in law but proper in principle that

the respondent, who is the sole heir of her deceased husband be liable to refund the

bride price which her husband received in respect of the marriage of his sister to the

appellant. The trial Primary Court found that thirty six head of cattle were

refundable, but the I District Court, on appeal, reduced the number to twenty, after

making allowance for the

1985 TLR p140

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duration of the marriage in accordance with customary rules. We are bound to

interfere A with the judgment of the High Court by allowing the appeal and setting

it aside and restoring the judgment of the District Court.

B Order accordingly.

1985 TLR p140

C