19800507 TZHC Mwanza1

/ IN THE IGH COT OF TANZANIA (In the District Regisry) at MwanZa (pa) CIVIL APPEAL NO. 113 OP 1979 (Prom the decision of the District Court of Bukoba District at BWcoba in Civil Appeal No. 24 of 1979). B10 M\iAJ1J11,A RBBiJ o,..... .... APPEI1L.0T v er S u s 1 - 1LSUDI HLBIBU 0***&**000S 00 SS• • 500 OS•I•• • RESPONDENT 2 L.BDIThURIJ S.BURI SUBThCT.- Redemption of clan shamba. J U D G M E N T Bi Mwajuma Nab thu, herein enjoying the status of the appellant f sued Masudi Hb tbu' and Abftunuru Saburi, in Muleba Primary Court, seeking to recover, a shamba, that had been sold' by Masudi'Wbibu, to Abdunuru Saburi. The foundation' of her claim, was that, the shamba in question was clan proper'r which had been disposed of, wihout clan authority or' sanction. The two respondents, agree;d, that sch'sa1e too place, and in evidence, put the - purchase price at Shs012,000/=. The Primary Court umanimosly held, that, the sale be invalidated because of absence ci' the clan sanction. The said court further held that, the seller of the said sham'ba pay the purchase price to the buyer. The Primary Court evT went into the question, as to how much was the ptrchase price, may be entertaining the conviction, that the repondents would settle the matter themselves. The two respondents appealed to the District Court The District Court having gone over the' evidence, 'held that, as the sale was not sanctioned by the clan, and that, as Masudi Hbjbu would subject to the clan authority be entitled to sell, the said sale could only be invalidated through redemption_meaing: the appellant had to do the same, refund the purchase price, and even compe.sate'the 'buyer for any improvements since the sal.o. Having so -ruled, the same District Court, accepting the 'Sale Document exhibit "Afl - directed that redemption'be allowed, the aDpellsnt pay the purchase price Shs.l2,000/=, and compensation .i'or improements amounting to Shs.2,000/=, toAbdunuru Sabui. */Court The appellant aggrieved, has appealed to thip/significantly, disputing that Shs.12,000/= was the purchase prico. • Having gone through the case, I am satisfied, as was every- body > that Masudi P'.bu sold the shamba in question to Abdunuru Saburi. Again it is not challenged, that Masudi Habibu and the appellant, were boniof the same father, and therefore belonged to the same clan. Masudi Habibu and the appellant had other sisters • When -Masudi Habibu was bona, his ±'ather, -was alread dead. He was théref ore 'brought up by the -- apellánt in this very shamba, an estate that, had not been -- - shared. It could. therefore be taken to have been a clan, joint - property It follows, therefore, that Masidi Halibu actualy )clan - old the said shamba without; the said/authority, The appeJint / / *. - 2 - as did hold, the District Court, was emitled to redoam the said shamba. In such a situation, the sale is invalidated, and the redeaaaer refunds the purchase price, and pays compensation for improvements, if any. The District Court was therefore justified, in ordering a refund of the purchase price and compensation for improvements by the appellant. The question, is what was the purchase price? The appellant has beenaadamant in her testimony that, the amount known to have been paid as purchase price was Shs.1,500/=. The buyer respondent Abdumuru Sahuri maintained, as did his purchase document, that, he paid Shs.12,000/= for the shamba. Masudi Habibu admitted this was the amount paidto him. The District Court, found this was the amount paid. But I think, the District Court, did not address itself aoough1 to' this question. I have scrutinised the evidence, and noted that, the assessors who visited the shaoiba, could not believe their eyes, that shamba in questinn could sell for Shs.12,000/=. This is significant, for if in their eyes such a piece of land cound not sell at that amoWit, obviously Abdunuru Saburi being no fool, could not trade his Shs.12,0001, for such a piece. Of further' interest, is Masudi Habibu reply when the claim was read to him. Masudi Habibu said and I quote- "Ni kWeli nimeuza shamba la tkoo, bila idhini ya Mdai. NilicaLluia Mdaiwa No. 2, Abdunuru Saburi kwa bei ya Shs.1,500/= (Elfu moja na mia tano). Niliuza mali hizo zikiwa mali ytangu.' Sgd: The above notwithstanding, Masudi Habihu, lator chmiged and supported Abdunuru Saburi, that the purchase amount was Shs .12, 000/=. I cannot imagine how Masudi Habibu could have first said, he sold the shamba at Shs .1, 500/=, if the amount actually paid was Shs.12,0001. And Masudi Habibu's mother, who claimed to have been present during the transaction, even gives still a s.aller figure, -she says and I quote:- "Mimi Shs.12,0001=, sizijui, sikuziona ila najua Shs.700/= (mia saba) ndizO zililipwa na Mdaiwa 1o.2 akinun.ua shainba la shauri.' This again goes to efiow how questionable the claim for Shs.12,000/= is from the above, nor was there payment by inta1- ments, 10 lead to a thinking the above were se of the instalments • I am in agreement with the Primary Court that, the purchase price was inflated, purposely to defeat possible redemption, and I view the Abdunuru Saburi fraudulent in his claim 1 and his witnesses untruthful, as did the Primary Court 'view thin. I agree, that, the purchase price was no more tha.a Shs.1,500/=. As the improvements were assessed at Shs20001=, it is'hereby orderedthat the appellant refunds Shs.1,500/= as purchase price and Shs.2000/= as compensation for improvaments to the 211d resn4Abdwiuru Saburi. The ppeal ip allowed with costs. 0U ,- - :i ,t• , E. W. KJTITI JUDGE IIOOURT 'OF ~ ,~iZANIA ç1.T BL1xoA;•' 1 . HIAY,'. 1980