Joseph v. Reonata Civ. App. 75-A-71; 5/10/ 71; Kwikima Ag. J.

 

Joseph v. Reonata Civ. App. 75-A-71; 5/10/ 71; Kwikima Ag. J.

Respondent, a teenager, was engaged to one Balthazar according the Chagga customary law. It was established that all the formalities for a valid engagement are performed. She later became friendly with the appellant who proposed marriage which she accepted. The evidence established that they had sexual relations on several occasions. The Respondent then broke off the engagement and the respondent successfully sued him in the district court for breach of promise.

            Held: (1) “The one issue on which this appeal must stand or fall is whether the suit was one under customary law and if so whether he District Court acted ultra vires at it had no jurisdiction to try the case. Once this issue is determined in the appellant’s favour, there can be no useful purpose served in considering other issues which would then be irrelevant.” (2) “It is not easy in our present

Society to say what type of marriage parties are contemplating when they agree to marry. They may be envisaging Muslim marriage, a purely customary marriage, a purely customary marriage, a Christian marriage or even a purely civil marriage upon which society still frowns in spite of its increasing popularity. What ever the type of marriage the parties contemplated, except for a purely civil marriage, certain tribal customs are always observed. One of them is the payment of bridewealth to the girl’s parents. Unless a couple meets under clearly extra tribal circumstances, it is impossible to say that they can contemplate a marriage, a court of law must bear all these factors in mind. Attention was brought earlier on in this judgment to the fact that the respondent‘s engagement to Balthazar went in accordance with Chagga customs. It cannot be said, and there is no evidence to suggest, that the respondent and the appellant wanted to operate outside their tribal customs. Otherwise the respondent would not have insisted to be taken to the appellant’s parents. The parties must have contemplated a Christian marriage which recognizes tribal customary incidental to it. Such customs are like the payment of brideprice, pombe and such other formalities as would not offend Christian morale. There is no reason to suggest that the parties who are both chagga Christians would have chosen to observe considerations other than these. The fact that the respondent had observed them in her engagement to Balthazar is clear indication of the fact that she understood the appellant o be following the pattern familiar among their people. I would therefore hold that the breach was one for a customary marriage and was itself justiciable under the principles of customary law.” (3) “All suits involving customary marriages and matters incidental thereto must commence in the Primary Court, according to section 57 of the Magistrate’s Courts Acts Cap. 537. the wording of that section was paraphrased by Seaton J. in Mwjage v. Kabalemeza 1968 H. C. D. 341:- “Under section57 of the Magistrate’s Court Act, all civil proceedings in respect of the incidents of marriage must be taken in the primary court, unless the Republic or the President is a party or the High Court gives leave……” in this case it cannot be denied that the suit is founded upon a matter incidental to marriages namely a breach of a promise to marry. Neither party was the Republic or the President nor there no direction from the High Court that the matter should commence elsewhere than in a Primary Court. The district Court therefore acted ultra vires in hearing the case. Consequently the trial was a nullity.” (4) “[Respondent’s counsel] argued that the objection as t the trial court’s jurisdiction should have been taken very early in the proceedings. In reply [appellant’s counsel] quoted a very persuasive source;- Commentaries on the Code of Civil Procedure (Indian) by Alyar, 6^th Edition the relevant part of which reads:- “Where the Court has no inherent jurisdiction over the subject matter of a suit, its decree is a nullity even though he parties may have consented to the jurisdiction of the court …………… An objection to the jurisdiction of the Court goes to the root of the proceedings and can be taken at any stage of the

Proceedings even ……… on appeal ……… Even when objection is not taken, when there is a complete absence of jurisdiction acquiescence of the parties cannot give the Court jurisdiction in the matter (Notes at p. 95)” This is a commentary on the Indian Code of Civil Procedure which used to apply here before our own Code was introduced. The commentary is very pertinent to the issue before me and I adopt it approvingly.” (5) Appeal allowed.