Hassan s/o Sefu v. Muru s/o Mohamed. (PC) Civ. App. 43-A-68, 30/8/68, Platt J.

Hassan s/o Sefu v. Muru s/o Mohamed. (PC) Civ. App. 43-A-68, 30/8/68, Platt J.

In May, 1967 defendant contracted to purchase plaintiff’s house for Shs. 8,00/-. Shs. 3,000/- was paid at that time and it was agreed that the balance would be paid in July, 1967. The house was kept in plaintiff’s name, and it was agreed that defendant would take possession immediately but would surrender possession if the balance was not paid. Defendant failed to pay and plaintiff filed this action in Primary Court for recession of the contract and the return of the house upon repayment of the Shs. 3,000/- which had been paid. Plaintiff is an Asian and defendant is an African but is not the member of any tribe.

            Held: (1) The provisions of s. 14, Magistrates’ Courts Act, control the provisions of s. 57 of that Act. Thus, an action must be filed in Primary Court under s. 57 only if it has been determined that the Primary Court has jurisdiction under s. 14 to hear the case. [Citing Mohamedi Ngownyani v. Tumwa Dodo, (PC) Civ. App. 34-67]. (2)Customary law can govern contracts for the sale of a house even though the transaction does not involve special forms of tribal organization such as clan ownership of land. [Citing Andrea Rafael v. Antonia Masakuya, (PC) Civ. App. 57-66]. Paragraph 3 of the Fourth Schedule of the Magistrates’ Courts Act suggests a wide definition of the scope of customary law in reference to contracts. (3) The Primary Court had jurisdiction to try this matter if the parties were subject to customary law. (4) s. 9(1) (a), Judication and Application of Laws Ordinance, Cap. 453, provides that customary law shall apply to civil matters “between a member of one community and a member of another community if the rules of customary law of both communities make similar provision for the matter.” The Primary Courts lack jurisdiction where there is no such common ground of legal procedure and jurisprudence. [Citing dicta in

Report made in 1953 was held relevant but the court found that any inference of partnership was adequately rebutted by (1) the fact that the alleged partnership had never been registered under s. 4, Business Names (Registration) Ordinance, Cap. 213, which would have been required if there had been a partnership, but not if there had been joint ownership only, and (2)plaintiff had never explained the interest of the bankrupt’s daughter, who owned a share of the farm. The Court concluded that the sharing of profits did not necessarily made the parties partners, relying on s..191 (2)(a) and (b), Contracts Ordinance, Cap. 433, which provide, in substance that joint ownership is not necessarily a partnership even if there is a sharing of profits or gross returns. The Court held that s. 191(2)(c) of the Ordinance, which provides that, in certain circumstances, sharing of profits of a business is prima facie evidence of a partnership in that business, was not relevant, since plaintiff had not demonstrated there was any “business” rather than merely the affairs of co-owners.