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Colonial Cases

Abdullah v. Hamis, 1898


Abdullah v. Hamis

Appeal Court, Zanzibar
Hamilton J., 1898
Source: [1898] East Africa Protectorate Law Reports 1






C.A. 4/1898


Sheriah - Disputed ownership of slaves - Burden of proof - Limitation rule in Sultan's dominions, dated 23rd Shaaban, 1306.

   Held. - A person laying claim to slaves in the possession of another must produce evidence in support of claim, though the defendant alleges purchase - Claim must be made within 12 years from date of adverse possession.

    Parties in Person.

   NOTE: Practice in cases relating to slaves.

   Domestic slavery is recognised in the coastal strip, but since 1890 fresh slaves cannot be acquired, and all persons are born free (decree, Seyid Ali).  Although actions may be brought with regard to the ownership of slaves in the Sultan's dominions, the Court will not order the transfer of slaves from one party to another, but where compensation is payable equitably will make a decree for the payment of money to the injured party.  In a case of disputed ownership where the Plaintiff is entitled to succeed, the most approved form of decree is that by which the Plaintiff on receiving compensation grants the slave's freedom.

   JUDGE HAMILTON. -  This is a second appeal from a judgment given in the Provincial Court of the Sayyid Province, the original case having been heard before the Kathi of Malindi.

   The Appellant claims to have bought some slaves from a  woman Fatuma some 18 years ago, and the woman now claims the slaves to be hers, denying the sale.

   The Kathi of Malindi called on the Appellant (the original Defendant) to produce witnesses in  support of a document of sale which he had put before him, and gave him a certain period in which to do this.  It then appears that the Appellant  came to Mombasa and did not produce the evidence required within the time, and on his failing to do this the Kathi held that the slaves would become the property of the woman.  On appeal to the Provincial Court the case was decided on the  same grounds against the Appellant.  The Kathi, however, Sheikh Nasor, and I myself are of opinion that the original Plaintiff should have been called on to prove her claim and produce her witnesses, which was not done, and the Appellant having been in possession of the slaves for so long the Claimant should have been called on to prove a better right to them than that of the Appellant.

   The Appellant has also raised another point, and that is that the woman should, according to custom, have brought her claim within the usual 12 years, which was not  done, and that this action was thereby barred.  On both these grounds we are of opinion that the Appellant must succeed, and the judgment of the Lower Courts be reversed.  And the respondent pay costs in this Court and the Courts below.

   (Appeal allowed.)

Published by Centre for Comparative Law, History and Governance at Macquarie Law School