19791105 TZHC Mwanza

Ci4 IN TflE HIGH COURT OP TLZIA LT WJi.NZA APPELLATE RJRISDICTI ON (PC) CIVIL APPEAL NO.. 10 OF 1979 (From the decision of the District Court of Bukoba District at ukoba in Civil Appeal No. 269 of 1977 - Before: J.S. Mwami, Esq., Senior Magistrate - and Original Karabagane iiiary Court Civil Case No. 17 of 1977) BI. iTERIA GUALBERT : : : : : : : : : : : ::: : : :: : APPELL.NT VTERSUS 1.BOD SULEi\IAN') RESPONDI!NTS LJ'1AN SULAN ) I , 0000 J Ti D G M E N T MUThTI?L, J,: This is a second appeal which is against the concurrent decisions of the two counts below, The despute is about redemption of clan land in accordance with Bahaya customary law. On 1174/68 the appellant bought a piece of land from one Abmad Seleman. On 16/5/77 the respondent Lbdu Selemaj,, the elder brother of Abmad Seleman (whom I will refer as theAeJleD) filed a suit in Ka'abagaine Primary Court to redeem the 4 shamba. He argued that it was a clan lend and could not be sold without. the consent of clan members • The trial c ourt found that the shamba in despute vias part of the clan land, and that the respondent was allowed to redeem it by paying the purchase price plus compefisation to the purchaser, the appellant, total amount being Shs. 12,370/=. The appellant was dissatisfiCd and appealed to the District Court of Bukoba but she lost She now appeals to this court. Her main complaint is that it is a long time since she bought the shamba and she has developed it a great deal. That the respondent did not seek to redeem the shamba within three months as provided ±' or by the cistginai law. In reply to her memorandum o appeal the responent argued (para 8) that his action for redemption was in time as th period allowed by the customary law, rules is 12 years not 3 months. Even if the period be 3 months, he argued, the action was still in time as he lost no time after he got the news of the tale of the shamba. It appears that there is no consesus of judiOial opinion as to the period within which to redeem clan land. From lone ago the Biaya customary law (as restated by Carry & Hai'tnoll) recognised three months within which to bock redenptio....But:. in Martin Va: Tibishubwainu (1968) H.C.D N.412 and ixByebato Va: Lwehabura (1974) LRT N.25 it was decided that the three month limitation has been superseded by the Customary Lay Limitatjon of Proceedings Rules, .G-N 311/64, wMh prdvid (para 6) the period of 12 years ubhi.n hich to brine an action for recovery of ossession of land. Despite thosëdecisions, - 2 -. in Biteya•Vs: Haji 10du Se an(*975Y N.43 9 it..v1ddo4 that the period is three nonths. On my parb I have SOL1C opinion to give on thie controversy. I would like to say that the 12 year ±iild is àz the former Indian Limitation ACt, the act itself being the creation of English Common Law. It was air -ted at adverse possession. Even in the Customary Law Limitation of Proceedings Rules, this 12 year rule i there o t enable the recovery of land in adverse 'occupation. The question is whether the appellant can be said to be in adverse possession of the respondcns• land. Adverse possession is interpretedii law.- books as "act incthasistent with the. rights of The trtowner. é' 0 In this particular case; who was the true owner of the land before Its sale to the appellant? It belonged to the clan members • The respondent stated during the hearing of this appeal that their clan consists of eleven members including himself and the seller of the desputed land. It goe8 without saying that the seller also had property in the ld. I If he had none 9 he would have been jailed as a thief. So when he sold that land to the appellant he passed the property in it to her. It was therefore a lawful sale. The appellant caflnot be said to be in adverse possession. It is because the Bahaya law has a rule that allows invalidation of sales such as this one 1 otherwise the respondent would have had no remedy against the appellant.. The Bahaya law wisely recognises this position. That is why they talk of redemption not recovery. You don't have to redeem land adverCely occupied by a squatter. You simply evict the squatter. For the above reasons I am of the opinion that the term "recovery of possession" in para 6 of the schedule to the Customary Law Limitation Rulea is not the same as the tern "redemption of clan land" u.ied in Bahaya ,land law. The limitation rules dO not provide the period of limitation in cases of redemption. Under rule 5 the courts have discretion to accept or re joc t such action. •BÜt the Bahaya law has alredy settled the period of lim itation sa 3 months from the day the sale is imown to the clan. A very fair rule of law. I find that the period allowed for redemption of clan land is 3 months. The final point is ;hether the re.s.Ondent's action for redemption was within the 3 month limit. It is undesputed that the land was sold in April 1968 aAad the respondent filed redemption suit in April 1977, a peribd of 9 years from the date of the sale • He argued that he was in the array stationed in Biharanulo. He said he did not .lmow of the sale till 1973. Even then he did not file the suit till 1977 because the appellant was not to be seen. It must be - born in mind that as soon as the appellant bought the shamba, qho moved in and erected a permanent house and left her mother to live in there whenever she (appellant) was away. The sitamba is in the same village in which the respondent and his clan live. It is unbelievable thatthe clan did not imow that a stranger had inovcd in -the land. As to respondent's arguaent that he was in the army in Biharamulo, I would say that sldiers go on leave at intervals. • The respondent canno say that he never visited his village from 1968 to 1973 ashe allegod. He did not state the circumstances which prevented him. Even if I accept that he did • not lrnow of the sale till 1973 the ±asons why he delayed the action till 1977 are not convincing. In reading the judgments of both c ours below I have disc ote red that these c oi)rts never tried to consider the period of limitation seriously. They seem to have acted mechanically because the shaibawas a clan • land and the respondent had the right to redeem it. In conclusion ..../3. •-- -- •-•---- - -J I find that the respondent's redemption suit was tae barred. I allow the appeal, sct'as -id6 the decisions of the two courts below andshstitte thoro±' the order dismissing the The appellant to have her costs of this ap'a-and atIe two lower courts. .f7 h.1. ..' /1 F. A. JITYERL JIJDGE ....... (10 •0 0 ........... 0 •0 ...... .: • :. •. T •0 • I... • . J.•