CUSTOMARY CONTRACTS AND THEIR RECOGNITION IN TANZANIA

INTRODUCTION

MEANING OF CUSTOMARY LAW AND CUSTOMARY CONTRACT

Customary law consisting of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws. They are also termed consuetudinary law .

The provision of section 2 (1) (h) of the Law of contract Act , defines the term contract to mean all agreements that are capable of being enforced by the law.

Customary laws in Tanzania are applicable by virtue of section 11(1) of the Judicature and Application of Laws Act , which is to the effect that customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of a civil nature.

In the light of above definitions, customary contracts are those contracts which are regulated or governed by customary law .

The applicability of customary law is also affirmed in several court decisions which have recognized the validity and legitimacy of customary law. For example, in the case of Maagwi Kimito V. Gibeno Werema , where the Court of Appeal of Tanzania held that, “Customary laws of this country now have the same status as any other law subjects only to the constitution and other statutory law that may provide to the contrary”.

MAIN BOBY

HISTORICAL BACKGROUND OF CUSTOMARY CONTRACTS IN AFRICA COMMUNITIES

The development of customary contracts in Africa can be traced as far back as during the period of feudalism where surplus started to be produced a thing that encouraged exchange at larger extent. Such changes were in terms of barter or sale or another type of arrangement which were legally binding according to customs, usage or rules of a given community or tribe .

CUSTOMARY CONTRACTS AND THEIR RECOGNITION IN TANZANIA

The Tanganyika order in council of 1920 required the governor when making Ordinances, to respect existing native laws and customs provided they were not opposed to justice or morality .

Also every court was called upon, in all cases to which natives were parties to be guided by native law so long as it was applicable and was not repugnant to justice and morality or inconsistent with an Order-in-Council or Ordinance or any Regulation or Rule made under any Order-in Council or Ordinance .

Moreover, the courts were required to decide cases to which natives were parties, according to substantial justice without undue regard to technicalities of procedure and without undue delay .

Basing on the Order-in-Council, 1920, one may argue that customary contracts were recognized and could be enforced in the courts provided they did not go against the provisions of the existing law and were not repugnant to justice or morality .

In 1963 under section 14(1) of the Magistrates' Courts Act , primary courts were given general civil jurisdiction over causes of action governed by customary or Islamic law, and certain other matters in respect of which jurisdiction was specifically conferred by statute.

Therefore relevant customary law must be applied if it is applicable and is not repugnant to justice or morality or inconsistent with any written law as explained also in different decided cases.

In Mtatiro Mwita V. Mwita Marianya , in this case the plaintiff received one bullock from defendant in exchange for some finger millet. The bullock died two months later of unknown causes. Both parties belong to the Kuria tribe, and this type of contract is well known in tribal custom. The custom is that if an animal so exchange for millet dies within one year, the meat and skin may be returned to the other party who is then obliged to replace the animal. Plaintiff followed this procedure and then brought this suit for another bullock. The lower courts refused to follow the custom on the ground that the dispute involved contractual rights and therefore the primary court had no jurisdiction to hear it.  On a second appeal the learned Chief Justice allowed the appeal and found no reason why primary courts should not be able to hear cases involving agreements well known to tribal customs. Therefore on appeal it was held as follows;

“…If persons of the same tribe enter into an agreement well known to tribal custom, under which the terms are prescribed, these persons must, in the absence of evidence to the contrary, be understood to be contracting in accordance with these terms. Also Relevant customary law must be applied if it is applicable and is not repugnant to justice or morality or inconsistent with any written law...”

There is authority for the proposition that the principle of privity of contract shouldn’t be applied in customary contract cases . 

The above position is affirmed in the case of Ephraim Obongo v. Naftael Okeyo , whereby the defendant, a lorry owner, used to collect cassava from plaintiff for selling. On one occasion, his lorry driver and turn boy went to plaintiff to collect some bags of cassava. Plaintiff refused to deliver the goods, demanding that they first produce some empty cassava bags which they had evidently taken another day, or some money.

They returned to defendant’s wife, who gave them 24 bags and T.shs. 190/-, and sent a not promising that everything would be taken care of when her husband returned from a journey. Plaintiff received no more money, and sued in Primary Court for the value of the cassava he had given them, and for some other empty bags not returned, less the money and bags received. The Primary Court held that since the transaction leading to the disputes was between plaintiff and the defendant’s wife the proper party to the suit was the defendant’s wife and not the defendant. On that ground he dismissed the suit. The case went on appeal to the District court and then to the High Court. Seaton J observed that the case involved an issue of privity of contract, a contract rather subtle and technical point which, perhaps Primary Court couldn’t deal with. He said.

“…In suits between Africans living within a local community and doing business amongst themselves on a basis of trust, I consider it would not be in the interests of justice to import technical notions of privity of contract and other such notions, unless clearly required by the law to do so…”

In Joseph Constantive v. Losilale Ndaskoi , in this case the plaintiff agreed to build a house for defendant and, in return, defendant was to give plaintiff a piece of land. Both are Waarusha. Plaintiff entered the land and carried out a number of improvements. He failed to build the house for the defendant. Defendant forcibly ejected plaintiff from the land. Plaintiff, in an action brought initially in the High Court, claimed compensation for unexhausted improvements, including permanent trees and some houses and produce, under Arusha law. In earlier proceedings, defendant had claimed title to the land on the basis of Arusha Law.

 It was held that (1) The dispute is governed by Arusha law, because (i) plaintiff based his claim upon it and not upon the Law of Contract Ordinance; (ii) both parties had accepted that the agreement was governed by customary law; and (iii) defendant’s claim for title of the land had been governed by customary law, and it would now be illogical to decide the question of unexhausted improvements on a different basis. (2) Since the agreement was governed by customary law, the Law of Contract Ordinance was excluded by section 1 (3) of that Ordinance, as amended in the Magistrates Courts Act 1963, Sixth Schedule. (3) By section 57(1) of the Magistrates Courts Act, no proceedings relating to immovable property under customary law could be instituted in any court other than a Primary Court without the leave of the High Court. 

CONCLUSION

Generally, the customary law contracts are well applicable in Tanzania in a condition that such contracts are not inconsistent with the constitution and other written law and this has been well exemplified by different court decisions and provision of some statutes.

REFERENCE

BOOKS

Nditi, N (2004). General Principles of Contracts in East Africa. Dar es Salaam: Dar es Salaam University Press.

STATUTE

Judicature and Application of Laws Act [Cap 358 RE 2002]

Magistrates’ Court Act [Cap 11 RE. 2002]

Tanganyika Order- in-council of 1920