19711211 TZHC Mwanza4

IN U2 COURT OP TANANIA AT Il:izA Appellate Jurisdicti. on (pa) CIVIL APPEAL NO. 75 OP 1971 (Prom the deciioñ of the district court of Bukoba in Civil Appeal No. 83/71 before I K Machumu Eeq., District Magistrate - Or,gina1 Civil Case No. 62/70 of Iduhutwa primary court). CLEOCE MASH PSIIAHI . . .. J .• . . . . APIHI versu.s ALLEITA D/O KAYOLVE . a a. • a a • • o • • a • • • • • • • IUDSPONDBJT JUJLflLTT KISANGA, Ag.J The appellant Cleophace Mashanshane was sued by the respondent Aini..na Kayooibvie for the recovery of a piece of land The primary court at Liuhutwe in Bhkoba Distxict gave a majority judgent for the appellant, with the priiaar court magistrate dissenting, but on appeal to the district court that daaisioia was reversed and the appellant has now appealed to this Court Most of the facts as found by both courts below were not in dispute The suit land is clan lend originally belonging to one Mol -iared Onar Kishumba, now deceaed Saetime alga the said Mohaned pledged the land but his brother, one Mpanju, also deceased, redeemed it for I800/— and Cave it back to Mohsned Mohaieed had no children and sometime in 1958 he bequched t1t land to the respondent Amina vtho belongs to the same clan as ilohamed and iIpanju themse1ves The appellant also belongs to the sane clan of Mohaeied and Lipanju. Liobasaed died in 1970 and the appellant opposed the beauest on the L,TOUfld that

when Mpanju redeeid the land, it became his (Lilpanjuts) property and it ceased to be the property of Liohcaied, so that upon the dealh of Lipanju the land should descend to Mpanji,tt s heir, one Mhaka.tesi j and that Nohamed has no right to bequeath it to the respondent as he diC - The assessors in the primary court took the view that tho respondent - should lose the claim because Mohamed, her testr, had no right to bequeath the land to her aiter he had pledged it away and siter it vao- redeemed by Lipanju. They therefore allowed the claim nd held that the land belongs to Lipanju and his successors in title. The primary court magistrate, in his dissenting opinion, found that Mpanju did redeem the land dtcr it was pledged by Mobamed but that ai'ter such redemption he reotored it to Iviohamed and that he himself did not lay any claim of ovraership on it He, therefore, took the view that oneership of the land was s1l vested in Moharaed and that Liohamed could validly bequeath the land to the respondent Amirm The district uagistrte ce to the sae conclusion but for adifferent reason. He found that there was no eyidence to support the allegation that Mpanju redeemed the land which was pledged by Mohameci and on that account Mohened validly bequeathed his land to the respondent Amina The primary court magistrate was entitled to find that the suit lnnd was once redeemed by L.ipanju

after Mohaied had pledged it avarj This was I amply supported by the evidence of the respondent's own witnesses., P,W.W2, 3 and 4, and Ifind no reason for holding a contraIT view as the district magistrate dio However, there is evidence also to show that after Ivipanju had redeemed the lEnd lie restored it to Liohaned and that in cking sa he imposed no restrictions on how Mohed may deal with the 1and P..h.3 testified that Tipanju redeeid the land in order to keep it within the, clan and P.J. 4 said that Mpanju gave the land to MohaLle ci without any restrictjons It would scorn from this that there was nothing to restrict Mohaijed in his dealing with the land as he liked provided that in so doing he did not offend the m.les of customary law by taking the land outside he clan to which he himself and Mpanju bcU.onged During the first appeal, the appellant told the district cairt that Mpanju redeemed U. shainba in 1943 and died in about 1964 If Mpanju had any claim of ovaeorsiiin over the land, it would scorn that he would have inaniiosted such a claim during all this period of over 20 years from 1943 to 1964 Again, the appellant told the district court that LIpanju made a verbal will leavirn; the suit- land to his own daughter and that this will was made before six persons However, there was not a shred of evidence in support of this alic-gation. Indood if Mpanju had made such a

will, one would expect that his daughter would have proved such a will upon his death but it is somewhat odd that she cUd not do this In all the circunistances of the case 9 I an satisfied that the lower courts were justified in holding that the clan land belonged to Mohamd andthat Mohemeci was entitled to bequeath such land to the responc1ent 0osequent1y, the appeal is dismissed with costs LrlTzA, 'HaL) Th ll12.1971. Ag.JWJGET.