JUDICATURE AND APPLICATION OF LAWS ORDINANCE (CAP.453)

CASES:

(1) Ngonyani v. Mbuguni (1972) HCD 5

(PC) Civ. App.57-D-71; Nov. 1971; Mwakasendo Ag. J.

The appellant’s daughter was betrothed to ‘A’. ‘A’ paid Shs. 700/= as bride price, Shs. 80/= sitting fee, Shs. 70/= Hodi money and Shs. 148/= as a gift to his fiancée. Before the marriage the respondent seduced the girl and impregnated her. ‘A’ demanded and was refunded all the money paid to the appellant and to his daughter. Appellant sued the respondent for damages for the loss incurred by him in having to refund ‘A’ the money. The primary court applying Wamakonde law found for the appellant. The District court on appeal affirmed the decision but reduced the sum payable by Shs. 148/= paid as gift to the appellant’s daughter, applying rule 13 of the Customary law (Declaration) Order 1963.

Held (1) “I have found the decision of the lower Court unsatisfactory on two major grounds. The first is that though the Courts purport to adjudicate the matter in dispute in accordance with the Customary Laws and practice of the Wamakonde, I have totally failed to find the record or statement of the appropriate Wamakonde customary rule pertaining to the subject matter in dispute. The two lower courts are no doubt familiar and conversant with the customary laws and practice of the Wamakonde but this Court is not. And no imagination is required to see how impossible it is for this Court to deal with this appeal without a proper statement of the Customary rule in question being made available to the Court … I shall order that the record be referred back to the District Court with instructions to record a statement of the Wamakonde Customary rule or rules relating to the questions in issue with sufficient particularity.” (2) “The second ground on which I found the lower Court’s decision unsatisfactory is on the matter concerning the refund of Shs. 148/= given by “A” as gifts to appellant’ daughter. The District Court applying rule 13 of the Customary Law (Declaration) Order 1963 held that this gift was not refundable. This decision would have been perfectly in order were it not for the provision of the Law of Marriage Act 1971. The Second Schedule to the Act amends the Judicature and Application of Laws Ordinance, Cap. 453 by adding an new section 3A, which provides: ‘(3A) Notwithstanding the provisions of this Act the rules of Customary Law and the rules of Islamic Law shall not apply in regard to any matter provided for in the Law of Marriage Act, 1971. The Law of Marriage Act, 1971 makes a specific provision for the return of gifts and therefore in accordance with Section 3A of the Judicature and Application of Laws Ordinance; set out above, rule 13 of the Customary Law. (Declaration) Order, 1963, is inapplicable to the matter in issue. Section 71 of the Law of Marriage Act provides as follows: ‘71.A suit may be brought for the return of any gift made in contemplation of a marriage which has not been contracted, where the Court is satisfied that it was made with the intention on the part of the giver that it should be conditional on the marriage being contracted, but not otherwise.” This is also a matter on which the District Court should take additional evidence directed towards finding out whether or not the alleged gift of Shs. 148/= was made with the intention on the part of the giver that it should be conditional on the marriage being contracted between “A” and appellant’s