19720620 TZHC Mwanza

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PUPT uO p0 qtLrflSq0O SIlO T; oouepçAe 4 pqse s • • • • ;..tt0o sp. 0; a petedd M0U S -OLT puu wtt purto; qon .s .znoo .ot.r;stp etj. edds .s.Itj U0 ;tq .uEtIedd et.fl o; puflo; OXeeTO) je tnoo jtwt.xd etj 'PuET uo wespe.x o. qoof .zexetj .uspuodse.x etrq. q ;trtoq UQT.DV UV O. ;upue;ep et. SMtzflc)r .ISt.IA uTtctd ej, r 'voivsnr - IrwDanr . . S • (JJT;utvld ¶Ut.t,xQ) & 0•• (;upue;ecr tUTTJO) a a a a a a a a a a ' a a aa a a a 1TVnItI2rddV 1 TN11fV) LSIHVA - • . • ;oT.xq.st .. ''be oeuoq i r :i.tojo oL/cT °N eSuO IATD - xd.OJS )rSto)r •tt.1O oL/€oi 'on T?5c1dV-tAtO Ut qoflg.; 0 ;Jfl0 OJST.ST JO u 0 t-spea. at; wo.z) . - tE6T ffOt ON WTdcWnIIAI73d) S • • • S 5 '/VMI Y VINZ!tTd ffOJ..Ufloo HOIH 7!J NI • — — agent said or did somthing during that transaction; estoppel therefore applies to forbid such a party or•h•s -repisentativc to speak subsequen- tly ag:inst his own word or act as concluded in the said transaction. In the instant case the re oiTdeit/p1athtiff"a 'hot a party to the transact.pp whereby her husband sbld the land to the appellant 0 Nor can it be s.ii that hei husband concluded that transaction as her agent because sheUid..not have any title to th land vhich she could autho- rise her husband to pass to a purc1aer It therefore follows that estoppel could not be held against te ; epondent/plaintiff because she was not a privy to the transaction mereby the u,t land was sold In revel-sing the primarp court the. district magistrate in a very brief judgernent held t at the respondent was entitled to redeem the • aalf.of some two children she has born to Jacob, itappearing that.the larned district magistrate considered the said two children to be members of Jacob's clan. The question arises whether the correct procedure was followed in bringing the action. Section 29(2) of the Magistrates' Courts Act 19&3'rovide8 "Stibject to the provisions of subsections (i) and (3) of. this section and to any rules of court relating to the representation of parties, a primarg court may permit any reJa.tive or any member of the household of any party to any proceedngs of a civil mature, upon the request of such party, to appear and act for'such party.". Subsections (1) and (3) are not relevant because they are' concel-ned with appearances of public piosecutors, advocates and'bodies corporate. On reding Ulk subsection it is plar that the resoondent could sue on behalf of her children if the children had so. requested and the court granted the request, However no such request was made .by the said children. Where as in this case the suit is brought by thewrong plaintiff the irregularity is fatal because i .fan,award were to be made to the wrong plaintiff then the rights of the true plaintiff are therby prejudiced and this would amount to a failure of justice. I therefore think that the claim as brougt by the respondent was not maintenable• There as evidence that according to the customary law of the district the respondent having borne children to her husband she thereby became a member of her husband's clan, and one of the assessors in the prinary dourt held that in those circumstances the respondent was entitled to bring the action in her own name to redeem the clan land. This position however appears untenable. For, there is always a possib- ility that the respondent for one reason or other may go back to her father's home and remain there for good and evenremarry. Such a si- tuation may arise, for examplG, following a divorce or upon the hus- *4 band's death. In view of such póssibility it seems impossible to say that the respondent acquired membership of her husbands clan by the mere fact of bearing chihiren to her husband. The true position is that a married woman such as the respondent has the statue which is recognized by law as a'wife or, where the husband is dead,, as a widow. She also has certain rights which are recognized in law as pertaining to this status, but this does not make her a member of her husband's clan for the purpose of rdeeming clan land. It therefore follows that the proceedings were incompetent since they were brought by the wron plaintiff and they ought to have been struck 'out. Consequently I allow the appeal with dosts. and the respon- dent may be adviCed to file the action afresh in compliance with the terms of section 29(2) of luIegistrate's Court Act cited above or ask a member of her husband's clan to do so0 M ANZA / 20TH JtJN± 9 1972 NG JUDG