INTRODUCTION

Scope of the question

The question requires how the judicature and application of laws act is a guiding
legislation on the sources of law in Mainland Tanzania this means to explain how this
specific piece of legislation defines and regulates the various sources of law.

Meaning of the key terms

The judicature and Application of laws This act outlines the hierarchy of laws and the
application of different sources of law within the Tanzanian legal system.
Sources of law The origins from which particular positive laws derive their authority
and coercive force. Such are constitutions, treaties, statutes, usages, and customs. In
another sense, the authoritative or reliable works, records, documents, edicts, etc. to
which we are to look for an understanding of what constitutes the law

As per requirement of the question the following are the sources of law in Mainland
of Tanzania as provided in the judicature and application of laws Act

Customary law
Customary law refers to the rules, practices, and norms that have evolved within
particular communities over time.
legal provision of customary law
customary law is a source of law provided in the judicature and application of laws
Act this is as per Section 11(1) of judicature and Application of Laws of Act provides
the applicablility of Customary law in Tanzania This section says “customary law
shall be applicable to and courts shall exercise jurisdiction in accordance therewith in
matters of civil nature….”

From the words of section I1(1) of Judicature and Application of Laws Act above, the
Customary law is one of the applicable laws in Mainland Tanzania. However the
Customary law is only applied in matters of civil nature or civil disputes, not in
matters of criminal nature. The Customary law is un-codified [Link] means that
rules of the Customary law are not found in Statutes. Instead there are several books
which contain rules of the Customary law from various communities. These books
include the ones written by Cory and Hartnoll, Cory and Hydon among others
Applicability of customary law
Customary laws are applicable in Mainland Tanzania only in matters of civil nature
lthis matters of civil nature are matters of inheritance,marriage,divorce,Warkf and
others of like, the applicability of customary law is subjected to the provision of
Section 11(1)(a) of judicature and Application of laws [Link] provision provides
that “customary law applies between members of a community in which rules of
customary law relevant to a matter are established and accepted” The principle in this
Section was applied to decide the case of Joseph Constantine v losilale Ndaskoi The
dispute arose from the agreement between the Plaintiff and the Defendant, applying
Waarusha FOOTBOO 1968)HCD381 Customary law, which was the law known and
accepted by both of the Parties.

Furthermore the applicability of customary law is subjected to the provision of

Section 11(1)(c) of judicature and Application of laws Act This provision provides
that “Customary law applies relating to any matter of status of or succession to a
person who is or was a member of a community in which rules of customary law
apply, in section 11(1)(c) of judicature and Application of laws Act was applied to
determine the case of Chacha Gikaro v Marwa Mario FOOOT 1967 HCD 456 in this
case the court held that
In deciding whether to apply the Customary law or not to determine the dispute of
civil nature which is pending in the Court, the Court of law shall not be required to
ask for the consent of the Parties thereto. What the Court of law is required to do is
only to ascertain that the Parties acted under a particular Customary law which the
Parties belong.
Status of customary law
in Mainland Tanzania the Customary law is valid law and is enforceable in the Courts
of law from the Primary Court the high court For example Section 18(1)(a)(i) the
Magistrates' Courts Act gives the Primary Courts exclusive jurisdiction to adjudicate
all civil maters arising from the Customary law and islamic law. Thus the Customary
Law has equal status to any other laws of Mainland Tanzania, This i s ascertained by
the words of the Court of Appeal in the case of Maagwi kimoto v Gibeno Werema
FOOOTNOO 1985 TLR 132 Where it stated that The customary of this country now
has the same status in our courts as any law subject only to the Constitution and any
Statutory law that may provide to the contrary

Islamic law
is a set of binding norms derived mainly from the Holy Quran, Hadith Ijmah and
Qiyas Holy Quran is the holy book containing divine revelation according to Islamic
faith Hadith means practice of prophet Mohammed Qiyas means analogy and also
from consensus of Muslim [Link] is a logic systematic analysis of principles
developed to deal with problems not envisaged in the Quran,Hadith or Qiyas .Islamic
law emanates from Islamic religion which is a theology which establishes Dogma and
state under this dogma and state this Islamic law provides for rules of behavior and
require Muslims to believe and behave accordingly . In most cases a complete Islamic
law is called shar and sharia FOOTNOTE myneni ,[Link] ca,p 6
legal provision of Islamic law
Islamic law is a source of law provided in the judicature and application of laws Act
this is as per Section 11(1) (ii)of judicature and Application of Laws of Act provide
for application of Islamic law in Mainland Tanzania. This section reads that;
"Nothing in this subsection shall preclude any court from applying the rules of Islamic
law in maters of marriage, divorce, guardianship, inheritance, wakf and similar
matters in relation to members of a community which follows that law”
Applicability of Islamic law
T'he Islamic law is applicable in Mainland Tanzania and is binding on the Members of
the community which profess Islam. This means that the Islamic law is applicable to
the followers of Islamic faith and only to those Muslims who are willing to be guided
by Islamic law FOOTNOTE this is in accordance with Ilm el araq . If there is a
Muslim who does not wish to be governed by it the Islamic law shall not apply to
such a person in the case of Musa Makon v Rehema Hassan FOOTNOTE(1967)HCD
159 the court held that”There was nothing in the circumstance to show that parties
intended their religious law to apply as their personal law rather than their tribal law”
This verdict of Georges, C.J.: is a clear indication that Judiciary shall not force people
to follow or to be guided by their religious law in cases there is a dispute in court of
law . What’s the court is supposed to do is to look at the circumstances of the case and
if it finds it proper to apply religious law the. It shall apply accordingly.
Status of Islamic law
Although the Islamic law is enforceable in the courts of law in Mainland Tanzania it’s
enforceability is not [Link] are three major conditions for the Islamic law to
apply first condition is that Islamic law applies only in disputes in which parties are
Muslims in case parties are of different religion Islamic law shall not apply Second
Islamic law applies only where parties agree to be determined by Islamic law and
finally the Islamic law applies in matters of civil nature
FOOTNOTE Section 11(b) of The judicature and application of laws Act and 18(1)
(a)(I)of the Magistrate’s Court Act Islamic law si not required to contradict the
Constitution of the United Republic of Tanzania of 1977 The principal legislation
Subsidiary legislation the International rules and the Local Precedents. In case
islamic law contradicts any of these laws then such Islamic law shall not be
enforceable

Received laws
Received laws refer to the laws which MainlandTanzania receives and applies from
outside the country. These are the laws whose origin is outside Mainland Tanzania but
they are enforceable by the by the Courts of law of Mainland Tanzania in certain
circumstances
Received law is a source of law provided in the judicature and application of laws Act
this is as per Section 2(3) of judicature and Application of Laws of Act provides for
the application of Common law,Statutes of general application and Doctrine of equity
Common law
Common law applies in Mainland Tanzania only so far as the circumstances of
Tanzania and its inhabitants permit and subject to such qualifications as local
circumstances may render necessary This is provided under Section 2(3) of judicature
and application of laws Act
Applicability of common law
Although the Common law is one of the laws of Mainland Tanzania, its enforceability
is subject to two conditions. First thing is where all the laws of Mainland Tanzania
have lacunae on that particular matter which that the Common law needs to
supplement and second thing is the circumstances of Mainland Tanzania generally
must permit application of such Common law. in the case of Tanganyika Garage Ltd
vs. Marceli G. Mafuruki where the Court held that;
“Where the circumstances. are not provided from the codified law in Tanzania , one
must fall back on the English common law”
Statute of general Application
the Statutes of general application are enforceable in Mainland Tanzania through
section 2(3) of the Judicature and application of laws Act .For the Statute to be statute
f general application it needs to be Statute which was operative in England at the
reception date which is 22nd july 1920 in the case of Tanzania National Electricity
Supply Company vs. Independent Power Tanzania Limited,FOOTNOTE 2000 TLR
324 " said that
"In this country, there is no statutory provision (Act) which cannot be applied here (in
Tanganyika)as it was enacted after 2 2 July 1920, assuming it is a statute of general
application
Doctrine of equity
Doctrines of equity is part of the laws of Mainland Tanzania through section 2(3) of
the Judicature and Application of laws Act . The Doctrines of equity are always cited
by the Judiciary of Mainland Tanzania wherever the circumstances requires its
application. The 24 maxims of equity are part of the laws of Mainland Tanzania. The
maxims justice delayed is justice denied, justice should not only be done but seen it is
done and he who approaches justice must go with clean hands are some of the
maxims of equity which Judges apply from time to time.

In the case of Salehe vs. Eljofu and Alkathiny FOOt the East African Court of Appeal
was confronted with the case where it was to determine whether the Decree of
redemption of mortgage could be granted to the Mortgagor in a case where the
Mortgagor had failed to repay at the prescribed time. If the Court applied the
Common law to decide this case, the Mortgagor would lose the case. This is because
the Common law does not allow the Mortgagor to redeem the mortgaged property
after expiration of the prescribed date. Further that according to the Common law, the
Mortgagor who fails to repay the loan. loses his mortgaged property and still he is
liable to repay the loan. The EastAfrican Court then applied the Doctrine of equity to
decide this case and realizing that the Common law was unfair .Using the Doctrine of
equity the Court held that;
“Nevertheless the equity of redemption could not be defeated and mortgager was
entitled to the decree prayed."