19711211 TZHC Mwanza3

,,- - III TIE HIG1-i COUUT OP TAUZANIA AT I:!ANZA Appellate Jurisdiction (pc) CIVIL APPEAL NO. 70 Oi l 1971 (From the decision of the district court of Eukob. in Cil Appeal No. 55/71 before J. Ti. Mboneko Esq, District Itagistro:be - Origins.l Civi..l Case To. 63/70 of Muhutwe primary court). :asTIT TR0 . . . . . . . .APILLIuUT versus YOLMANUMOLELA . . . . $ . . . . . . .. •. . . . . . .LCNJSED JUDG1NT KISAITOA, Ag. J. The appellant Selostine Petro sued the respondaat Yoliame Nunyolela j ollnly. witu one Liuka3una d/o yabat o for tue recovery of a clan shemba worth S,500/-. The Primary cart allowed the claim but on the :tirst appeal the 6itrict court reversed that decision and hence the a'ppezal to this Cart. The brief facts nero that the suit land is clan lancl Ii belongs to one Petro, a minor aged about 13 years, who inherited it froll h±s deceased father., Daniel Upon his father' death Petro cane under the gleardionship of his aunt, iTukajuna yabato. At one time Petro heceme ill end his aunt s having no money, sold part of the clan lend which Petro iniie:.:itod from his father in order to raise Tioney to meet thost of Potro' s treatment • She sold the land to Yohuna Idunyolela but - the, amount for which the land was sold is in dispUte;. she 11cges it to be .70/- but Yohena claims that he bought tat land for .480/-. Tao appellant is not a member of Patrot s clan but his fethar and Netro' s grand-father were very gr.:.a.t friends and it is because of ahis close intimacy between the two ianilroe tuat tue appellant brought the action on bchlf of Petro. Yohana Munyolola, the purchaser of the land, and Nukjuna d/o Byabato, Petro' s aunt and the vendor of the land, were made co-defendants The primary court allowed the clain on the ground that th land -- beloned to the minor Petro by inheritance and: that 1-dukajuna hd no right to sell it. The land should thnfore revert to Petro and Yoliu.nu was at liberty to claim th purchase price from I:.Iukajuna. Thee district magistrate, in reversing that decision, took the view that thc appellant was not entitled to redeem that land on behalf of Petro because he was not a member of Patrols clan nor was he asked by Petro to file the action on his behalf. It is not apparent under what provisionathe primary court allowed the appellant to file the action to claim the land There is ample evidence that the-suit land is -clan land.. Thus, if LIukajuna, in her capacity as Potro's guardian, improperly sold the clan lend, it was open to any member or members of the clan to bring tho action to recover the land Imdced,.it would appear that there are clan members who could have recovered the lmad Idukajum said that she once pledged this lend but it was redeemed by clan members and with respect to the present sole she said that she did not knom that such sale of the clan land was to be referred to clan siembers To r.r mind, this would increasingly suggest Thct there are clan- members- and L. being so the action should have boon brouht by such clan member or sembcra which the - -.4 i;' .., appellant was not. In his memorandum of appeal, the appellant claims that he brought the action in his capacity as a co..guax'd - ian in accordance with the provisions, of po.ragi - nph 233 of CORY Al, D HARTNOIL on the Customary Law, p1' the I-lays Tribe. That 1Darc;raph deols with the appointments of the male co- uardian and it prov:Ides that- V/here theie is no one suitable esiong the relatives 'or this office the next claant is a blood brother of the deceaod. As a last resort the mother's eldest brother will be chosep" It mould seau that before a person can be appointed a co-guardian under this paragraph it must he shown that there is no one among the :rlstives of the deceased who is suitable for the appointment to this office. As indic ated earlier, it appears thct in the present case there are relatives or clan members of the deceased, and since there is no indication that none of then is suitable, then there was no ground on which the appellant could claim to be appointed under the paragraph quoted above This action migrt properly have been brought by the appellant if he was a relative, of Petro and Petro requested hjeu to do so, Section 29(2) of the LisEstrates' Courts Act provid so that- Subject to the provisions of subsections (i) and. (3) of this section and to any rules of court relating to the representation of parties, a primary court may pmmuit any relative or any member of the household of any party to any proceeding of ivil nature, upon the request of such party, to appear and act for such party.. Subsection (i) deals- with appearances- by advocate or by public prose ---tor, and subsection (3) doe-is v-pith appearances by a by corporate-; The appelloart was not requested by ?otro to bring the action; he was neither a relative nor a member aff the household of Petro and thevefore he- could not purport to bring tie action on behalf of Petro. - It should be noted that one practical problem. seems to arise if the appellant were- allowed to bring;tho action as he d±d The court might fipd ) aaainst the purchaser as it CUd, but it nigh -b also hold that the purchaser WE'.O entiti ad to compensation for the ±nproveaents clone, to, the land which iuc:Ldentelly was assess-cd by the district court at .500/-, The question is against whom would the court riake such an order for compensation? It could not make ouch order agdnt the minor Petro mao is the owner ci. the land boccuse Potro is not a party to the suit It could not prop( ,rly make the order against - the appellant because it is not the appellant rho stands to enjoy the fruits of such improvements done to the land, and for the sane reason such-an order could not properly be made against Mukajuna, thQ vendor- of the land. It is for those reasons that I would uphold the judgment of the district court and accordingly dismiss tizo SPPCC1,withcr H Kioiiga) - AgJlTD -E -- -