20031010 TZHC Moshi

IN THE DISTRI(;T COURT OF MOSHI AT'MOSHI CIVIL CASEj NO. 33 OF 2003 i I MRS CECILIA DISMAS MARANDU ) THOMASSAWAKIMARANDU I >......................... . APPLICANTS (CHAIRMAN, MARANDU CLAN i' ) I I Vl;RSUS ;, 1' I MRS LUCRESIA DONASIAN MARANDU ..................... DEFENDANT 11 JUDGMENT I I One Wishes that the issues rai~ ed in this case were for mere moot and not for real. The Main issue as agreed by the parties is; who between the parties has the right to bury the dece:ased Donasian Dismas Marandu. I I Donasian Dismas Marandu to whom I shall sometimes refer as the i deceased died on 19.7.2003. \ Although the main issue is onJ~ there is a maze of several smaller . I issues raised in the course of pursuing that main issue. These shall also call 1 for determination. 1, i The facts of this dispute are ndt hard to comprehend only that they I touch on people's morals; and the unenviable duty of the Biblical Solomon to I determine who between the two ladies had the right to the disputed child, is I left on the shoulders of an ordinary mprtal. (Kings 1 Chapter 3 Verse 23-28) j! Donasian Dismas Marandu was!:born and grew up at Keryo village I I within Rambo District in Kilimanjaro R~gion. He was a product of a Catholic i, union between CECILIA MARANDU the first plaintiff and Dismas Marandu. i Donasian Dismas Marandu married LUkRESIA DONASIAN MARANDU the defendant under Christian rites in Bagamoyo District on 19.12.1971. He I I I ',, ' j. - r i' worked for the Government as an Agricultural Officer and during the last days of his life he held the post of chairman of Kilimanjaro Native Cooperative ! Union (KNCU) Keryo branch. Lukresia i Donasian Marandu is a , teacher at Shiri Matunda Primary School. Donasian and Lukresia's holl union was blessed by their parents and clan members who gave them a redeption at Keryo in 1972. This marriage had seven issues all of them female! including Pendo who testified as DW2. 1 Donasian and Lukresia acquired ass ets such as houses at Dar es Salaam Street at Shanty Town and at Kata~ini Karanga area. All these houses are said to be within Moshi Municipality\ During his lifetime, Donasian and his wife lived and worked in I Bagamoyo, Kisarawe, at Kindi Estate, Kichoni Estate, and Kifumbu Estate. I . In 1991 Donasian's father di~d. He died at Donasian's Dar es Salaam I I Street house after a long illness. On account of what shall later be a subject I of controversy, Donasian is a natural l heir of his father including the later's landed property at Keryo Rambo D6nasian's father was buried at this country house. I i Donasian's life was punctuated by illnesses since 1984 when he was I diagnosed diabetic, hypertensive arid other related diseases. As a result he was in and out of hospitals regularly. He has ever been admitted at Kibosho Hospital in Moshi, Aga Khan Hospital in Nairobi and at the Kilimanjaro Christian Medical Centre famous by its acronym KCMC. On 19.7.2003 he passed away. His body was kept at the KCMC mortuary and it is still lying there. Donasian's body is yet to be buried since on 19.7.2003 because there is a dispute regarding where he should be buried. His body is, therefore, the I subject matter of these proceedings. I 2 Cecilia Dismas Marandu, that is Donasian's I mother and one Thomas Sawaki the chairman of the Marandu dan are suing for a declaration that they I have the right to bury Donasian at Keryo village in Rombo where he was born. Five witnesses testified on their case. With the exception of Cecilia Dismas Marandu who insisted on telling the story her own way even when examined by her advocate Mr. Anzamen Shayo, the rest of the witnesses, that is Thomas Sawaki (PWl) Mariseli Marandu (PW2) Fidelisi Marandu (PW3) and Gabriel Swai (PWS) had, basically, identical narratives to the following effect. The deceased was the eldest male child of Dismas and Cecilia. By virtue of that fact and the customary laws of his people, he was entitled to inherit the shamba on which his father;s house stands. The deceased developed the shamba and built a house thereon. Upon death of his father, the deceased became the owner of the house and the land surrounding it and that property became his ancestral horne. ' i i The other male children Mariseli: Marandu (PW2) and Fidelisi Marandu (PW3) would also be entitled to their shares of the land. In this case however the deceased purchased pieces of land: at Maji ya Chai area in Arusha Region and offered the same to PW2 and PW3 and the latter accepted to hold the same in lieu of their shares from their father's land at Keryo. It is the plaintiffs' case that for Donasian Marandu the only place of burial is at his ancestral home at Keryo. The pieces of land which Mariseli and Fidelis accepted in lieu of their shares from their father's land at Keryo became their respective ancestral lands because they have the blessings of the clan. Thus for Mariseli and Fidelis the places of burial when they die is that at Maji ya Chai area. According to PW1 and Cecilia Marandu (PW4) when a child is born, part of its umbilical cord is severed and buried somewhere in the ancestral 3 shamba. When a male child finally dies, he must be taken back for burial where part of his umbilical cord is. This however does not apply to a female child who if married, should be buried at her husband's place. The case for the plaintiffs is, therefore, mounted on four points namely; (i) Donasian is the heir of the ancestral land at Keryo in Rambo. (ii) Donasian's umbilical cord is at Keryo in Rambo (iii) Donasian was still a traditional Marandu (iv) Because of points (i) and (ii) and (iii) it is mandatory under Donasian's tribal traditions for him to be buried at Keryo in Rambo where his grave shall also be a shrine for his mother Cecilia. Then the plaintiffs proceed to intimate on the inevitable consequences should anyone bury Donasian anywhere other than at Keryo. It is believed, and indeed feared, by the plaintiffs that the Marandus will be haunted by their ancestral sprits. The Marandus will be risking a curse by the ancestors such that clan members are going to suffer mental diseases. The plaintiffs testified and their advocate Mr. Shayo submitted on the fact that burial arrangement is not a woman's business, according to Rambo Keryo's customs. A woman whose husband has died has other chores such as seeing to it that food and flowers are prepared. The plaintiffs' case is that Donasian's life was still connected to traditions and norms of his tribe. He was regularly visiting Keryo and was taking part in family and clan activities such as weddings and burials. He was a contributor to these functions and was a founder member of UMOJA WA MAZISHI KERYO - UMAKE, an Association or self-help Group on matters of 4 bereavements involving people from Keryo. The deceased has never expressed to the clan that he was breaking away from the traditional values. Most of the assertions by the plaintiffs are not disputed by the defendant. She admits that she married the deceased under Catholic rites in Bagamoyo and that she and her husband lived in several parts of Tanzania. Her family used to go to Keryo regularly on vacations and that at one time she lived there for seven months when her husband was working in Dar es Salaam. Lukresia admits the fact that her husband inherited the Keryo ancestral land but he was not the first male born of the family. The first male born of Dismas and Cecilia was one Mkwe who died during his infancy. Anthony who was the eldest, was born of Dismas Marandu's first wife. When this first wife died, Dismas Marandu married Cecilia. Anthony and his mother were buried in the same shamba owned by Dismas Marandu's father. Dismas Marandu was the heir of his father Mzee Fole. The thrust of Lukresia's case is that her husband was not the first male child in the family therefore it cannot be said that his burial must be at Keryo. She avers, and Mr. Appolo Maruma who represented her submitted, that if the eldest sons must be buried on their fathers' ancestral lands, why wasn't Dismas Marandu buried on Mzee Fole's shamba where Mzee Fole, Anthony's mother and Anthony himself were buried? Mr. Maruma submitted that if there is a tradition which binds first male children to be buried on their ancestral land, it is discriminatory and inconsistent. He said it discriminates a_gainst male children who are not the eldest like Mariseli and Fidelis. Then he submitted that it is inconsistent because it applies to some and leaves out others. He gave an example of Dismas Marandu not being buried on his father's ancestral land. 5 Lukresia testified to the effect thit Donasian was a Catholic and urbanised. He had detached himself and his family'from traditional ways of I doing things such as worshiping the ancestors (matambiko). His connection with his people was on matters not incdnsistent with his belief as a Catholic. It is submitted by Mr Maruma that the ~ere fact that Donasian was a staunch ' Catholic excludes the possibility of his IJelieving in other Gods. I I Lukr~sia asserts that she has the right to bury her husband at Katanini Karanga area within Moshi area. I The basis for this assertion is manifold; (i) Donasian jas not the first male child of the family. (ii) Donasian h~d broken away from traditional beliefs customs and norms, as he was a Catholic. 1 (iii) Even if Don asjan was by virtue of inheriting the Keryo land) obliged to be buried there, he had the right to ch~nge. I (iv) Dismas Marandu has ever instructed that Donasian'sifamily changes its permanent abode from Kery~ to Katanini. (v) Donasian did express his intention to be buried at Katanini. Evidence has been led dn the last two points. Lukresia testified I that in 1991 her father-in-law did tell her that they (Donasian's family) should make Katanini their peri~anent matrimonial home and move away from Keryo. Lukresia coild not rationalise her father-in-law's instruction but told this court that he may have foreseen certain things in Donasian's life. I' · j 6 i As regards Donasian's e ;!pressed intention to be buried at j! Katanini, Lukresia and Pendo (DW2) I testified that the deceased made the utterance on 15.6.2003 aftJr the family evening prayers at the I Katanini home. The utterance was made in the presence of Lukresia I and five of the daughters, that is, Pendo, Hedwiger, Linda, Irene and 1 Faraja. j 1 It is Lukresia's case that lhe wants to bury her husband at Katanini in fulfilment of his exp~~ssed wish and in fulfilment of her father-in-law's instruction. i. Those are, in my view, t~e fact relevant for the determination of the main issue before me. Ho~ever the parties have made unnecessarily lengthy referencek to facts which do not go to the root I of the matter. Briefly they took :issues with and testified on the 1 following; - whether Donas.ian and Lukresia obtained the parents' blessing beforJj and after their marriage - whether Lukrell'ia was given a reception at Keryo after the marriage. Whether the cl· n participated in caring for Donasian I when he was ill. - Whether DonaJian's death occurred at home, at the i doorsteps of th:e hospital or within the hospital ward. I - Whether the mr mbers of Marandu clan in Rambo including Cecilia, were informed about Donasian's death within relasonable time. - Whether at Bamboo I Bar where members of UMAKE ! \ met and authorised shs.110,000/= to be used for Donasian's fun~ral, Lukresia was gi\(en the money or she snatched trom the table. 7 • I have considered these facts and it is my judgement that they are irrelevant to the issue before me and are an unnecessary splitting of hair. I shall endeavour to show my reasons. First, the assertions regarding parents' blessing before and after marriage and whether the bride Lukresia was given a reception, whatever the answer to that issue, the status of the marriage between Donasian and Lukresia remains the same. They contracted a Christian marriage and there is no suggestion that whatever happened or did not happen prior to or after that marriage changed it into a customary marriage. As for the participation of the clan or any one in caring for the deceased during his illness, it cannot be said it entitles or disentitle anyone to bury him. One does not acquire a right to bury a dead person simply because of one's contribution in the man's medical care before his death. Nor does one lose the right to bury a relative because of one's failure or inability to care for him during illness. Many people who are assisted by strangers in illness would not be buried by their relatives if that were the case. The issue of the exact point Donasian met his death is equally of no value in determining the issue at hand. As there is no dispute that Donasian passed away on 19.7.2003 and as there is no allegation that the death was other than natural, I accord no weight to this point. It is being alleged by the plaintiffs that the defendant kept the news of her husband's death unknown to them. They stumbled onto the shocking news on 23.7.2003 when they met some people from Moshi who had gone to Keryo to bury one Paul Musoma. There is, 8 however, an undisputed evidence that the defendant informed Fidelis the deceased's brother as soon as the said deceased was in a coma. In any event, the plaintiffs' claim for the right to bury Donasian is based on customary law of their tribe. It is not based on the defendant's default in communicating the news of her husband's death to the plaintiff. The last issue is whether the defendant snatched the money intended for funeral costs or the same was given to her. To this, my answer is simple. If the law does not give the defendant the right to bury her husband she would not snatch it by snatching the money intended for funeral costs. I am not unaware of the force which drove the parties to address this point. It is because the defendant seems to say that the money was given to her by clan members and that this gesture signifies that the clan consented to the idea of burial at Katanini. However if the customary law of Rambo Keryo requires that burial be at Keryo, those who are bound by it including the Marandu clan cannot agree to violate it. An agreement to go against the law is unlawful. (Section 23 of the la\ft.'. of Contract Ordinance cap 433) The defendants called orie Hassan Msuya to testify on the alleged fact that Fidelis hired him to lay bricks on the grave walls at Katanini. According to Hassan Msuya, Fidelis is the one who purchased the bricks and located the space for the grave to be dug. He even authorised the digging of the grave by being the first to dig into the space located. What does all this amount to? Mr Maruma learned advocate submitted that it tends to show lack of consistency on the part of the clan. Mr. Maruma further shot down Fidelis Marandu's credibility, as unreliable and capable of changing like a chameleon depending on the circumstances. 9 • It is a pity Fidelis was not cross-examined by Mr. Maruma on his involvement in preparing the grave at Katanini. Therefore it may not be fair to condemn him as unreliable without having heard him admit or deny these facts. Yet there is another clue showing that Fidelis is a man to take his word with a pinch of salt. His conduct after he was told by Lukresia or her daughters that Donasian was dead, leaves a lot to be desired. How could his brother pass away in Moshi on 19.7.2003 and he keep his mother at Rambo District uninformed till on 23.7.2003? Well, but as I have observed earlier, even if Fidelis hired Hassan Msuya, as I think he did, that alone would not confer on Lukresia (the defendant) the right to bury the deceased. I now turn to the main points. The first point for the plaintiff is that the deceased must be buried at Keryo because he is the heir of the ancestral land there at Keryo. The second point is that Donasian's umbilical cord is at Keryo. I propose to deal with these two points together. The first point is not disputed but it is submitted for the defence that the late Donasian had the right to decide whether to be buried at his Keryo home or at his Katanini home or else where. The determination of this point shall therefore depend on the question whether Donasian and any other person has the right to decide on where to be buried. This, I shall come to later. On the point of umbilical cord, the defence has not said anything to dispute the fact that parents do bury their children's umbilical cords in Rombo. What the defence is uncomfortable with is the relevancy. In addition, learned counsel Maruma attacked that custom for being .. .. • I -.! discriminatory because it singles out Donasian and gives the rest the freedom to be buried away from their umbilical cords. Mr. Shayo learned advocate for the plaintiffs submitted that these traditional beliefs among the Keryo community have stood for so long that they have become law. He invited the court to apply the Keryos personal law and disregard Mr Maruma's submissions on discrimination. He called Mr Maruma's submissions political. Whoever heard and saw Cecilia testify in relation to umbilical cords and her morning ritual to make prayers at the graves will understand why learned advocate Shayo advocates for adherence to the custom. The question still is, are these customs in conformity with justice as section 9 of the Judicature and Application of laws Ordinance Cap 433 provides? I shall again skip this issue for a while. The third point is one of fact but very crucial, that is, whether Donasia was still a traditional Marandu. According to Lukresia, the whole family of Donasian had stopped subscribing tq the traditional norms that are against Christianity. Her husband had totally turned to God and was even conducting healing prayers for the sick. Mr Maruma submitted that Donasian's way of life suggested that he had no ties with his traditions. It is further submitted that Donasian had expressed a wish to be buried at Katanini. Mr Maruma submitted that the defendant has a duty as a spouse to fulfil her husband's wish as she performed her matrimonial duty to care for him during his illness. On the other hand, Mr Shayo submitted that Donasian's conduct did not suggest that he had abandoned his traditions. ·He cited to the court the 1986 Kenya's celebrated case of SILVANUS MELES OTIENO who was buried 11 at his village because it was proved that although he was living in Nairobi, he had not abandoned his traditions of Luo .. Mr Shayo submitted that under Keryo's customs a woman cannot make decisions regarding where to bury. It is unthinkable for a woman to arrange burials and the defendant seems to concede that her role would ordinarily be in preparing food and flowers. Somehow this is in all fours with the traditional beliefs of one of the witnesses in Otieno's case, (Page 17 of the special Publication by Nation Newspapers). She was being examined by advocate Khaminwa as follows:- "Khaminwa: If your husband died would you have a say in where he is to be buried as his wife. Awino: With us Luos, this is not for me to say. The wife does not decide about this or to do anything. Khaminwa: So what does she do at the funeral? Awino: She sends flowers when the husband is being lowered into the grave. She just sits," Mr Shayo submits that since the custom as above referred are similar to those of the Keryos and since there is no similar case decided in Tanzania, that decision of the Court of Appeal in Kenya ought to be followed. Mr Maruma attacks the customs which discriminate against women. tl:L., \\;Lc.,( .-r-'"(..,. 0 He has cited the provisions of_Article 13(4) of the Constitution of the United .AL..J ·-7 ~"d'i,..,,~ Republic of Tanzania 1977 which prohibits discrimination on the basis of sex. He further cited the case of NDEWAWIOSIA D/0 NDEAMTIZO VRS IMANUEL MALASI (1968) H.C.D. 127 in which his Lordship Said J (as he then was) held. inter alia. 12 .. I I I I I "The age of discrimination based on sex is long gone and the world is now in the stage of full equality of all human beings irrespective'I of their sex, creed, race or colour ... " I I I I I I Mr Maruma further cited to the Court Article 7 of the Universal I Declaration of Human Rights 1948. Article: 26 of the Convention on Civil and Political Rights 1966 and the Convention or\I Elimination of all forms of Discrimination Against Women -Article 2. 1 must commend Mr Maruma for 1 the research and able submissions. He further cited provisions under the Law I of Marriage Act 1971 which protect rights of a widow-section 68. I I I I I I I Mr. Shayo reduced the submissions by Mr Maruma to mere jokes when I. in his rejoinder he stated that we are not doing politics and that there is no I indication as to when did the international instruments cited became ' applicable in Tanzania. Mr Shayo fights f6r the status quo to be preserved I and the customary laws of the Keryo Rambo people be applied. I I I Further Mr Shayo stated that the ~ontention that Donasian ever 1 expressed a wish to be buried at Katanin i has not been proved because the I evidence of Lukresia and that of Pendo both require corroboration. I I I Now back to the points I left undetermined. I I I I The first is whether Donasian had the right to choose his place of I burial. There is no dispute that he had ;that right. What is being challenged is the fact that he did in fact express s*h a wish. Mr Shayo maintains that I , there is no proof of this fact because the evidence on the point is not )l corroborated.fiUnfortunately Mr Shayo does not tell the court the provisions of 1 any law under which Lukresia's and Pendo's I testimonies must be I 13 I I I I I ' I I J • corroborated. In any event there is no justification for subjecting to external test matters which a man decides to tell his wife and children in exclusion of (( his brothers. It is my finding on the balance of probabilities that Donasian had wanted to be buried at Katanini. As regards whether Donasian was still bound by the customary laws, I hold the view that he was not. No evidence has been led to rebut Lukresia's testimony that Donasian had gone so deep in Christianity that he was considering himself capable of healing the sick through prayers. I agree with Mr Maruma that this strong belief must be deemed to have excluded other beliefs. I also find truth in Mr. Maruma's submission that the customs of the Kery0's are discriminative and inconsistent. First if the belief in burying people near their umbilical cords is so strong , why do others violate that custom and get away with it? There is no reason why Mariseli and Fidelis can enjoy the freedom to determine where they want to permanently settle while that right is denied to Donasian. I think the society has come a long way since Otieno's case and a lot of water has passed under the bridge. That a woman should sit by and wait for men to decide on what to do with her husband's body may have been true some years ago but it cannot be true today. I understand the feeling of senior citizens such as Cecilia and Thomas Sawaki and their fear for change. This reminds me of the words of Lord Denning in PACKER VERSUS PACKER (1953) 2 All E. R 127 at page 129 quoted by his Lordship Samatta J (as he then was) in the case of MWASEGILE SAMUL! VERSUS MAKANIKA KATATULA (1980) T.L.R. 153; 14 • "If we never do anything which has ne~er been done before, we shall never get anywhere:" The law will stand still while the rest of the world goes on and that will be bad for both." Although those words were said and l~ter quoted in circumstances :, different from this case, they still hold even t9day. ,, Fortunately the laws of this country h~ve changed and a woman no longer sits by as in Otieno's case. I have not come across any case decided on the right of a woman to bury, but there 9:re cases on general principle of equality between men and women. ,', In the case of DAVID DEOGRATIAS MAKENE and WILLIAM MUGURUSI I HIGH COURT OF TANZANIA CIVIL CASE NO.341 of 1999 DSM Registry (unreported) the court held inter alia; ' ' r In dispensing justice the courts are ·:bound to abide by the Constitution. This is a requirement ,19iven in Article 107 Of the Constitution ......................... :'.......................... .. Article 9 (f) requires State Authorities and all its agencies to direct their policies and programs towards ensuring that human dignity is pre~erved and upheld in accordance with the sprit of the Universal Declaratio,n of Human Rights .......... " ,1 ' (page 6). Then at page 7 the court went on to say;:' i I "From what has been demonstrated above, this court has a duty to ensure that discrimination to women is eradicated. This is what the Constitution of the United Republic 1977 requires" Perhaps that answers Mr Shayo's.' question regarding the applicability of the international human rights instrumehts in Tanzania. In the cited case all I those instruments cited by Mr Maruma ~ere cited. On the question whether Donasian did tell his family he wanted to be ; buried at Katanini, I said earlier that t~.ere is no justification for doubting the family private communication. In the case of ELIZABETH MTAWA VERSUS 15 . HASSAN MFAUME RISASI (PC) CIVIL APPEAL NO.12 of 2001 HIGH COURT DODOMA Registry (Unreported) the court disagreed with the District Court on conditions set to a widow because those conditions interfered with iher right to privacy. Article 16(1) of the Constitution was quoted. It states; "16 (1) Every person is entitled to respect and protection of his person, the privacy of his own person, his family and his matrimonial life and respect and protection of his residence and private communications" Therefore on the basis of the fact that the customary laws on which the plaintiffs' claim is based tends to discriminate between one male member of the family and another and between male members and women, and since discrimination is forbidden by our Constitution and International Human Rights Instruments which Tanzania has ratified, it is my judgement that the claim is based on principles which are forbidden by the law and is hereby dismissed with costs. Since the defendant made a counter claim in which she claims to be declared the rightful person to bury Donasian Marandu and on the basis of the fact that she has that right under Constitution which guarantees equality between human beings, her prayer is hereby granted with costs. Thus judgement is in favour of the deceased's wife Lukresia Donasian Marandu. Sgd: I. P. Kitusi RESIDENT MAGISTRATE 10.10.2003 16 l I ,I ' • I I I :[ 10.10.2003 l Coram: I.P. Kitusi - RM Plaintiff - Mr Shayo Jr. for. Defendant- Mr Maruma for. Court - The case is for judgment. The sa e is delivered and right of appeal '1 explained. Sgd: I.P. Kitusi - RM 10.10.2ob3 t I I . 17