Abdallah Shant v. Mussa (PC) Civ. App. 123-D-70; 20/1/72; Onyiuke, J.

 

Abdallah Shant v. Mussa (PC) Civ. App. 123-D-70; 20/1/72; Onyiuke, J.

The appellant and respondent, African Moslems, were married according to Islamic Law. The marriage ended by divorce by talk 18 years after solemnization. After the divorce the respondent filed a suit in the Primary Court claiming Shs. 3,300/= as representing her contribution to the costs of erecting two houses and a but during the subsistence of the marriage. The respondent’s case was that shortly after their marriage the appellant who was then working as a house-boy for a certain expatriate found her a job as a yaya with the same employer. It was agreed between them that the appellant was to take her wages as her contribution to the building of some houses. It was part of the agreement that one of the houses would eventually be given to her. On the basis of the agreement the appellant received her wages for the whole period of her employment and built two houses. When the expatriate left they went to live in Bagamoyo where the respondent’s relatives gave them a piece of land on which they cultivated rice. They used the proceeds of the sale of the rice to build yet a third house. When the marriage broke up the appellant refused to give her any of the houses. The appellant disputed the claim. He admitted that the respondent was employed as she alleged but denied receiving her wages and that there was any partnership or arrangement between them. The primary court magistrate concurred with the assessors that there was not sufficient evidence for a finding of partnership and held that the respondent could not simply allege partnership by virtue of being the appellant’s wife. On appeal to the district court the magistrate set aside the decision and awarded the respondent the amount claimed. He disagreed with the findings of the assessors and held that the respondent’s story was consistent and held that the respondent’s story was consistent and was sufficient to support her claim. In making his order he relied on the English case of Balfour v. Balfour [1919] K. B. 521. He stated that that case established the principle that contracts between husband and wife were enforceable if they were intended to have legal consequences. In the High Court counsel for

(1972) H.C.D.

-10 –

The appellant conceded that the respondent did contribute but argued that since this was an appeal from a primary court the law to be applied was either Moslem law or customary law. He submitted that the district magistrate was wrong to apply English law.

            Held: (1) “I agree … that the proper law applicable to the case was customary law or Islamic law and that it was wrong for the District Magistrate to import the principle of English law.” (2) “I am of the view however that the District Magistrate’s conclusions were fully justified on the basis of customary law and/or Islamic law. That Islamic laws as well as Customary Law are equally applicable to Africans converted to Islam is fully established by the decisions in Hussein Mbwana v. Amiri Chongwe (Tanzania High court Civil Appeal No. 1 of 1969) and Re. Kusudwa [1965] E. A. 248. In the latter case Sir Ralph Windham C. J. stated as follows:- “The fact that a tribe may have been converted to Islam does not necessarily mean that its customs, particularly those relating to land tenure are thereby changed.” In the former case Spry J. (as he then was) made the following observations: - “It has sometimes been argued that Islamic law is to be regarded as applying to Africans as part of their customary law. In my view this is not a sound proposition. Customary law is the body of customs which b usage has acquired the force of law. As such it is constantly changing with changing ways of life. It cannot therefore, in my view include a complete and fully developed system of Religious law. Some elements of Religious law may, of course, be absorbed into the customary law but they are then to be judged and are subject to change as part of the customary law and they lose the attributes of the Religious law from which they were derived. I hold therefore that there are two systems or law which may apply in an African Muslim Community, Religious law in matters personal, such as marriage, and customary law which may apply in all spheres of life.” (3) “The District Magistrate was therefore not strictly correct when he held, in effect, that Islamic law was exclusively to be applied to the case before him. There can be no doubt that a contract such as the on under consideration is enforceable under Customary law. Even under Islamic law a Muslim wife is not obliged to provide anything for household expenses, a Muslim wife’s wages are her personal property and there is nothing, in principle, to invalidate or to prevent the enforcement of an arrangement such as the present one under Islamic law.” (4) “The District Magistrate was fully justified in his finding on the fact. The reasons given by the Primary Court for dismissing the respondent’s claim were unsound.” (5) Appeal dismissed.