19780922 TZHC Musoma

19780922 TZHC Musoma

The court held that while the relationship between the parties could not be recognized as a marriage under the Law of Marriage Act 1971, it was a valid contract under Zanaki customary law. As the contract was still in existence at the time the children were born, the respondent was entitled to custody of the children by contractual right. However, the contract was declared terminated from the date the appellant filed suit, and the respondent was not entitled to any children born thereafter or to a refund of consideration.

Citation
19780922 TZHC Musoma
Parties
Appellant: Mukami Wankyo; Respondent: Robi Mingure
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
22 September 1978
Procedural Posture
Civil Appeal / Second Appeal (high Court)
Outcome
appeal dismissed with variations
Legal Topics
Child Custody, Customary Marriage, Contractual Rights, Legitimacy of Customary Relationships
Source Language
English
Family Law Customary Law Child Custody Customary Marriage Contractual Rights Legitimacy of Customary Relationships

Case Brief

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Parties

Mukami Wankyo

Appellant

Robi Mingure

Respondent

Procedural Posture

Civil Appeal / Second Appeal (high Court)

Legal Issues

  1. 1 Whether a customary woman-to-woman relationship constitutes a valid marriage under Tanzanian law
  2. 2 Whether the respondent is entitled to custody of children born during the subsistence of the customary relationship
  3. 3 Whether the contract between the parties is enforceable under law

Ratio Decidendi

The court held that while the relationship between the parties could not be recognized as a marriage under the Law of Marriage Act 1971, it was a valid contract under Zanaki customary law. As the contract was still in existence at the time the children were born, the respondent was entitled to custody of the children by contractual right. However, the contract was declared terminated from the date the appellant filed suit, and the respondent was not entitled to any children born thereafter or to a refund of consideration.

Court Disposition

appeal dismissed with variations

Orders

  • Custody of the two children affirmed to the respondent for those born during the contract's subsistence.
  • The contract between the parties is declared terminated from the date the appellant filed suit.