19711211 TZHC Mwanza

1 14- -- 101 1E THE FGH OOURT OP T T 'IA AT I:1HANZA Appellate Jurisdiction (pa) CIVII AP2 NO 102 OP 1970 (Prou the decision of the District Court of Bukoba in Civil Appeal No. 285/69 before k. N. Ruseta Esq., District L.Iaristrate 0riinaJ. Civil Case lo. 29 of 1969 of Kalabagaine primary ccnrt). AHASTAZ1A BISiaNS , . , * , . . ,0 1 , , APflANT • versus - - IrJIIAIJUD GREGORY 9 axid) S *REDSPOPRTTS SE13i3TI €TUTI!. ) S * - JUDGTENT KISAUGA, Ag .1 The apellantstazia o Bishenshe sued the two respondents jointly for tLe redemption of a clan sba worth3 ,400/, The primar court at Kalbagaine allowed the appellant to redeem the land on repaent of the parch se price and compansation for improvements done 1 0 the land 1- and gave her 1 1 2 years during which to redeem such land' 05 She was aggrieved by this judgrent, however, and preferred an appeal to the district court at Eukoba inwhich she urged that the. suit land be restored -bo her clan without any &-eapensation to the buyer The district court upheld the decision of he pririlarj court and the appellant is now appeaIin. further to this coart The first respondent Muhamud Gregory was absent during the trial in tue y court and also during the first appeal, so -that the procee- primlonducted in the pxsence of the appellant and the second respon- dings were dent only. /On appeal to this court also the first respondant could not be seved

Th appeal first cane for hearing on 68.1970 and it. was adj ourned on a number of times in an attempt to serve the first respondent but each tira.e.the notices were returned unserved VThen the case finally came up on 9.9.1971, i.e. aver a year later, I thougirt that it would not be falr to pcs -L-pone the appeal for an indefinite period when it is not known where the responent has gone or when he might come back, if at all Ver briefly, the case for the appellant was that the first respon- deirt kuhaindd Gregory sold the clam shanba to the second respondent Shabani. Juna.viithot iorming the appellant who is a member of his (Muud s) c1an The appellant further alleges that the second respondent S)iabani cannot hay bought the suit land for such,a large sum of 314001-9 and that bath espondents agreed to fabricate this large figure in order to defeat t h e redemption of the land by clan members Th re was su±'ficiart evidence to show that the first respondent Jiuhanud Gregy sold the land to the second respondent Shabemi' This is clearly brne out by the evidance of the second respondent Shahani himself and is cafirmed by the testimony of P.7,3 9 D.W.2 and Honever it seems hat there was not stfieit. evidence to support the findiag of both below that the second respondent paid the wholo of334OO,, .. for the lend. Thcseoond respondent. Shabani clained that he houfat the lend for N.3,4

0/—. He said further that the sale was withessod by three people who dul siicd the purchase docunent Of the three vii.triesses two were call, rLz Laurean and Sued They both said that they were present when he first respondent Muhaaud eç;roed to sell the shanba to the second respoient Shabani for 2.3 ,400/-. and they both witnessed a payment of .1650/— twards the purchase price after which each of than signed the purchase ocument as a witness 4 They saic nothing rogarailig the payment of tle balance of the purchase price, and the seconci respondent called no ot1er witnesses in support of his allegation that the belonce of the purciaase]price was duly paid to the first respondont In the ciroun- stances I ak of the view that the evidence avaiable Was enough.to show that the sec/and respondent had paid only 1650/— for the shnaba, and the finding by toth courts below is varied accordingly Bothl courts below found that tle second respondent had carried out inprovcuont on the lend worth .4001—. There is nothing on the record to SuI;gCCt th./t this finding was wrong, and the order requiring the appellant to conpenste the second respondent for such improvements was well—founded in la. In he result, therefore, the appeal is partly alloviodt The appelJaBt is at libeiy to redeem the clan land on payment CI the purchase prices Ei.1650/— plus compensation for improvements in the sum of

3.400/—. Transport charges and fees for viewing the shamba during the appeal in the district court should be borne by the parties equally Also each party is to bear t, oir own cost of appeal to this court Tie trial raeisirete had allowed the appellant to redeem the land within l months from the date of his judgment but that period has already expired how. The appellant is shown to be an elderly woman of: about 65 years 04 ege and in thc absence of any evidence as to her means and ability to rsis this fairly substantial sum of money, I think that it would he reasonable to giveher one year from the date of this judgment during vthich to redom the land If she fails to redeem the land during that period, thernti'e land thould become the property of the second respondent, Shabani Jw / - (R. H. Kissa) ll.12.cL97l. Ag.J1TDL.E. -