Dotto D/O Rubera vs Clement S/O Mhigi [1987] TZHC 37 (14 October 1987)


Mwalusanya, J.: The appellant in this appeal Dotto d/o Rubera successfully sued the G respondent Clement s/o Mhigi at Burizayombo Primary Court in a claim of refund of 13 heads of cattle under Sukuma customary law.  The appellant is the aunt of the respondent in that the mother of the respondent one Kulwa d/o Rubera (PW.2) is a twin H sister of the appellant.  The respondent is an illegitimate child of this Kulwa d/o Rubera.
Sometime back, about 20 years ago, the respondent wanted to marry, but he had no father to provide him with the dowry cattle.  His mother Kulwa d/o Rubera (PW.2) went to ask her twin sister, the appellant, for some cattle on that she could give the same to I her son to marry.  The appellant was kind enough, as she gave out 13

heads of cattle to Kulwa d/o Rubera who in turn gave them to the respondent for A marrying. The respondent duly got married and has children of his own.
Just recently it is said the respondent began to despise and quarrel with his mother and appellant.  In other words he has decided to kill the goose that lays the golden egg.  It is B said that he has completely cut off from his mother and appellant and that he provides them with no assistance despite their old age.  When respondent had his three daughters married, he had no courtesy to inform his mother and the appellant.  So the mother and the appellant are fending for themselves.  Then there came a time when an insult was C added to an injury.  It is said there was a piece of land which appellant and PW.2 had given to one of their sons for use, so that the crops from the shamba could help them.  However respondent left his home in Sengerema District to go to claim that piece of land in Biharamulo District.  He sued that boy in court, arguing that his mother and the D appellant had no title to pass to the son they had given him.  We do not know who succeeded in that case, but that was the bitter pill that appellant and PW.2 could not swallow and the suit they filed.
There was the issue raised at the District Court, which was not dealt with by the trial E court, about the locus standi of the appellant who preferred the suit, as she was not the one who had personally handed over or given the cattle to the respondent.  It was the respondent's mother PW.2 who had handed over the cattle to the respondent.  In my view the District Court was right that the appellant was privy to the contract under F Sukuma Customary law, even if she was not the one who had personally handed over the cattle to the respondent.  In fact that was a non-issue at the trial, as it was common knowledge that under Sukuma customary law, on the facts as presented, the appellant was privy to the contract and had a locus standi to prefer the suit.  We should always G be wary not to introduce any notions of foreign law in our customary law.  However reprehensive the customary law may be, it is not for the courts to change it, but for the customary law community concerned to do it.  Therefore the trial court was right to be H silent on this issue, as it was conceded that the appellant indeed had a locus standi.
Now let me go to the matter in controversy.  It was conceded at the trial that under Sukuma Customary Law it is proper for a parent or near relative to claim back anything given to a child, who later 'sins' against the donor.  However, it is stated that the 'sins' I must be grave enough for such a drastic step to be taken.  The trial

magistrate together with the two assessors were of the unanimous view that the 'sins' A which were committed by the respondent were grave enough to justify the appellant to prefer the claim; and accordingly judgment was entered in favour of the appellant.
The respondent appealed to the District Court he was successful.  The learned District B Magistrate called her own assessors who advised her that under Sukuma Customary Law only two 'sins' justified a parent to claim back what he donated to his son, and those were witchcraft directed at the donor and assaulting the donor.  As the sins which the respondent had committed were not among those recognized ones, the District Court C held that the claim should fail.
In my considered view, the learned District Magistrate was wrong to enlist the help of assessors at the District Court under s.9(3) of the Magistrates' Court Act No. 2 of 1984.  According to my understanding such provision should only be invoked when the D District Court hears a case in its original jurisdiction or when hearing an appeal in case where the trial court omitted to consider a matter of customary law.  It will be appropriated that if a District Court calls its own set of assessors on a point which was decided by assessors at the trial court, there would be chaos, as has happened in this E case.  So on that ground, my interpretation of the section in question, is to be preferred.  The District Court should only have reviewed the decision of the trial court without enlisting the help of the assessors.  So on that ground alone, the decision of the District Court must be faulted. F
And as a matter of principle I think the opinions of the assessors of the trial court are responsible and to be preferred.  What the Sukuma customary law stipulates is that the 'sins' should be grave enough so as to justify claim of a refund from a delinquent child. G It would be anamolous if the sins recognized, were only witchcraft and assault of the donor, while such grave sins as committing adultery with the donor's wife or stealing huges sums of money or cattle from the donor were omitted.  That cannot be the Sukuma customary law for which much credit is given to the wisdom of the Sukuma ancestors. H
In the event this appeal is allowed.  The decision of the District Court is set aside and that of the Primary Court is restored.  Order accordingly.
I Appeal allowed.


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