19710128 TZHC Mwanza

IN THE iG'H COURT OF TzANIA AT MWANZA Appellate Jurisdiction (pa) CIVIL APPEAL NO88 OP 1970 (Prom the decision of the district court of Bukoba in Civil Appeal No 145 of 1969 before I'. K. Machuinu Esq,, district mastrate - Original Civil Case No.61/68 of Kamachumu primary court). CHRISTIAN .............. APPEINT versus AUGUSTIN TJAlL&ISh'O ...................RESPODJT JUDGMTT TJ C! J KISNGA, Ag.J. The appellant Chri stian Muhungye, was a co-defendant in a suit brought by the respondent for the redemption of a clan shemba The respondent alleged in the Primary Court at Kamachumu in Bukoba District that his .bther had sold the clan shemba to the appellant and therefore he was seeking to redeem the said shamba'. The respondent obtained judgment which allowed him to redeem the said shamba on condition that he paid to the appellant being the purchase price which the appellant had paid for,it. The appellant appealed to the District Court on three in grounds:- That the ropondent could not redeem the said sharahabecause he was time-barred, That if the respondent were allowed to redeem the shamba the amount-of purchase price ordered to be refunded by him was too little, and That if the respondent were allowed to redeem the •hamba no order for compensation was made.' The District Court held that the respondent could redeem the shainba under the Customary Law (Limitation of Proceedings) Rules ade under the Maiztrates Courts Act, 1963, as published in Government Notice No.31L of 1964".' On ground (2) he held that the respondent must refund 4,8O0/- to the appellant as purchase price because there was enough evidence to show that the appellant had paid this sum for the shamba • On the third grpund, he held that the respondent must pay the appellant a tota1of l9O0/- by way of compensation for the improvement done to the shamba He further ordered 'that the sum of S.2700/- of the total claim, should be paid at the '- end of June 1970 (the date of his judgment being 21.2.1970) and that the rest of the claim should be paid by equal monthly instalments of 6400/- starting from 3117/70". The appellant is now appealing further to this Court on a number of grounds which may conveniently be sunarised as follows:- '.'---'--- ,,. - .' - - ----- . -*---- 4 . . .2 That the respondent was not : 1t to i-edeem the shamba because there had been an outright sale an therefore the period of limitation laid down by..Govémment Notice No.311 of 1964 cited above was not applicable, That the amount of compensation as assessed by the District Court was pa±entlr izadequate, That the money awarded to the appellant was made payable over too long a period and that the respondent should be ordered to pay it in a shorter time, That the district court made no order as to what the appellant should do in the event of the respondent failing to redeem the shanba, - and 5 That the appellant should have been awarded costs in the District Court because his appeal there had been allowed to the extent of 3/4; On the first ground whether the respondent had the riht to redeem the shamha, Mr. Buch repiesenting -the appellant was of the view that the respondent did not have that right He said that initially the property was subject to a mortgage since 1961 but eventually it was sold outright when the mortgagor failed to repay the mortgage money. Referring to the Government Notice 1,10.311 of 1964 mentioned above he said that item 6 in the schedule thereto allowed the respondent to redeem the land V.,ri`Zhih 12 rears where the land is subject to a mortgage 9 but it does not spo± 6f redemption where there was an outright sale. He therefore contended that the Jimitation period of 12 years as set out in item 6 mentioned above did not apply to redemption of lana where there has been an outright sale as in this case and that the period of limitation applicable here is 3 months as ; ,stated in paragraph 568 of CORY & HA1L' s Customary Law of the Haya ribe A-similar problem came before this Court in the c.so of EVARISTIR LIAR TIN V. APOLINARY EUSTAD TEFUHWA TIBISHtJBWAHU P • C. (Hz ) Civil Appp&. 171/68 reported in 1968 Tanzenia High Court Digest No.412 In that ease the appdUat sought to redeem a clan shamba sold by the respondent to a thxd party, and the question was whether the-period of limitation for redeeming the shemba was 3 months or 12 years; it was held by itustafa, J (as he then was) that the period of limitation was now laid down by Government Notice No,311 of 1964 mentioned above and that under item 6 - of the Schedule to the Rules, pi'oceedings to recover the land must be brought vithin 12 T.o my mind that case would appear to have decided the point in issue in the instant case, but learned counsel for the appellant contends that item 6 of the Schedule is silent on the question of redemption IF .. .3 where ther.e has been an fright sale of. that land, ParagraphS (2) of the Rules as sot out in G - Notice No.311 of 1964 provides:- "No proceedings for the enforcement of a claim under Customary Law of a nature shown in the second colunrn of the Schedule herto shall be instituted after the expiration of the corresponding period shown in!the third column of that Schedule, such period being deemed toIcoence on the day then the right to bring such proceedings firt accrued or on the day when these Rules ce into operation, !whichever is the later" Item 6 in the Schedule rovides:- "Proceedings to rocover possession of land or money secured on mortgage of lend! * . . .is 12 years It would seem -td me that the expression "proceedings to mcover possession of land" is /very wide. It is not limited to proceedings to, recover possession of land, arising out of any specified transactions respecting that 1and II axe, therefore., of the view that this expression includes proceedings t.recovor possession of land, where the:e was an out- right sale of that 1and It, therefore, follows that the respondent was entitled to redeem the clan shamba within 12 years from the time the right accrued to him, and frpm the evidce it is clear that that right was still subsisting at the tim he instituted the proceedings in 1968 I now tuna to donsidor the second ground of appeal that the anount. of ciipensation as asessed by the District Court was patently inadequate. In his memorandum pf ppeal to the District Court, the appoflat had claimed a total of .4780/- as compensation. At the hearing of the appeal, he elaborated on this by saying that this sum represented the value of some 305 banana trees and 60 coffee trees wh±chhe planted plus cost of manure and labour j.ncurred oh developing the land. Thçi.leamcd district magistrate, however, reduced this figure and awarded 2900/- He said that he visited the lend which he found t0 be about 81 paces long x 46 paces wide, with a few young coffee and banana trees on i He gave no details however as to how he arrived at the figure of .900/-. The correct thing to do would be to itemise the award /by showing the number of coffee and banana trees and the value of each tre as is generally accepted in the arca I believe that by breadng down the award as suggested above, it would make it more apparent, especially -to the parties, that ustice has not only been done but appears to have been done. Accordingly tho case is remitted back to the District Court ith a direction to ma1 a- fresh order for compensation in respect of improancnts based on the number of banana and coffee trees to be ascertained b3 him, multiplied by the value of each tree The appcllan also claimed the sum of S.1875/- in respect of a house he built on the land in quostion At the hearing of this appeal, he gave a list of 14 items including purQ] iaso of poles, timber, corrugated iron 13 . . .4 sheets, doors and windows, the cost of which when added tocther comes to E.1882/75.. He also called two witnesseC to showed that they received a total of 2t,723/- for erecting the walls and supplying and fixing the doors and windows to the house. There was no evidonce to contradict the alpe 1 lant 1 s claim. The isained district maistrato, however, reded the cLm and allowed only s.ioOO/— without indicating which itas he disal1owo. or reduced. I think justice would be done If there is an independent opinion on this matter Accordingly the case is sent back to the District Curt with a direction that it takes additional evidence of at independent person, such as the court broker or the Regional Engineer as to the value of houzo Both parties should bear equally the cost of obtaining such additional evidence, and on the basis of that additional evidence the dstrict m3gistrate should then assess and make afresh order for compensa- tion in respect of the house. The third ground was that the money for compensation was made payable over too long a period and that the respondent should be ordered to pay it in a shorter time. As indicated earlier the District Court, lowod the respondent about fourteen monthrom February 1970 to April 1971 during which to redeem the land. On this point the respondent stated., and c cunsel for the appellant agreed, that he was caught up by unforsocable crcunstances whereby about 3 of his salar was attached over a considerable priod since 1965 until only October 1967. He, thercfe 9 asked to be vn mons during which to redeem the land I think this re-quest is reaso alc. If a third of his salary was attached during all this time, it is pssiblo that he might not have sufficient savings to redeem the land in a s1ortcr pod without undue difficulty He made this request first, in his reply to the appellant' s memorandum of appeal in about Scpteaiber 1970 and therefore I would allow him twelve months from September 1970 during which to redeem the shamba, If he fails to rode-cia the shamba during that period, tion the land should remain the property of the appellant The last ground of appeal was that the appellant should have been rdod costs by the District Court because that court has allowed -- of claim It is clear that the appellant was resisting the respondent's im to redeem the shamba He failed on that ground but succeeded only a. obtaining an order-for compensation and a refund of an increased amount the purchase price In these circumstances 9 I am of the view that the ant and the respondent were equally successful and that the learned et magistrate properly ordered each appellant to boar his own costs. In the pro••ent appeal also the appeal is partly allowed to the bent that the district court is directed to ascertain the number of A • o• bzra- and coffoc trees on the disputcd l.nQ nd to rocora fuither evidence from an independent viitneso regarding the value of the hisc on the land on the basis of that additional inforniation to make fresh orders for omponsation The parties sh1d bor their ovm costs in this appeal. Delivered in Cow't at Mwanza, this 28th day. of January, 1971. (fl. H. Kisanga) all Acting Judge H. Buch for appellant Reppondent present in peion.