19770513 TZHC Mwanza

Jc IN THE HIGH C OURT OF NZANIA AT MWJNZA (nc) CIVIL APEAL No. 47 OF 1975 • (F'rom the .decision'ôf ±he.&i.trict courtof Bukoba district at Bukoba in civil appeal 10 184 of 1974 - Before I. Nachuxnu, Esq., district magistrate - and Original Pukiimdo primary bourt civil àase No. 1.6/4) Domitina i\ ukanaara ippel1ant versus - • Paulo Luchungulana ..........................................Respondent J1JDC.1T •: •• LUGIKINGIRA, J. - In this apeal the responde sboen acdnstant victm of his own ignorance. The apellant sued h or the re&mpton of a clan shamba. Shetated in open court Mim:i, -nit .akomboa shamba kwa kiasi chochote ambacho tidaiwa atapenda kulipwa. Kania mdaiwa akisema niicomboe shamba kwa kiasi cha Sh 1o,000/- naweza kutoa." : 7:5p0en, on the other hand, was most si;raligely very àeable to the redemption. The only issue was, therefore, the amount refundable. ttccordingly, the respondent gave evidnco and oven called witnesses on this issue. It transpired that he had purohas'ed thooriginai..shtmba 7000/-. ..He had extended it and planted permanent crops which he valued atSh6,4i.6/. de had paid Sh 740/- to labourers. But ie asked to be refunded Sb 1,416/- only i.e. excluding l"bour charges. The primary court at Rukindo vsited the ;shamba. It found some of he crops not worth -there.spondent's estimation. It awarded him e flat figure of Si 10,440/- whick included his costs. He dad not complain. ironically it is the mr,ollnnt who complained. She apeaied to the District Court at Bukobe disputing the quantum refundable and even, for the first tune, jjuestioning..the legality of the sale itself. She invited the court to pay it own visit to the sharfba and the respondent readIly ip:JOk'ted the invitation. . The Dstrjct'Court did not concern itself with the legality of the sale, bU and proceeded to reassess comnensation. It de- cided that the respondents improvements were worth Sb 2,962/-ax.rpduced the amount refundable to Si 9,962/-. The respondent was also coflmflQd:ifl costs. He did not cOmplain. Once again, it is the appellant who complained. SIE appealed to this court. Jart from vritten memos the parties appeared in person at the hearing of the appeal. The appe'lant vigourously challenged the basis of any refund. She claimed that the re was illegal, hence that the buyer should look to the seller for his money • The respondent had nothing useful to say. He was equally irrelevant and told me that the seller had sold his own prerty, This is another of those cases from Bukoba which raise •onsiderable doubt as to their bona fides. The suit shamba was sold by the U2 ellant' s brother on 21.8.66 (it has not escaped my attention, of course, that the sale document was aerOd to show the year 1964). Be that as it may, the appellant did not bring her claim until 22.2.74. She alleged, as many of her kind do, that she was away from boe fr all those :Toars. Meanwhile, the rosponcient had ......2/.. (2) extensively en]rd the shbtand even g old. off.a portion of his development for 5L' 3050/-. Thc, op chant brougit the cloiti 'tile ging it to be in time as t4 c1v eors had,. nt slap sod sixce the pale. Wit-1h.. resect, this vierv is question-'ble. VZerc } icir 'dversary properly advised he would h a ve known that the time f or rt dt.i vtion undor Tlaya L w w a s not affcctod by Item 6 of the Shhedule to GN 311/6'h That ate does not apply to strangers who still must bring their claims within threenipr4ths of becoming aware of the trans- aotion, iowever,..lh.ve no reason to question the rosDondent's wisdom in his decision to lot the relLnt rde i the si iba. The appeal is definitely neanangless. The arpellant c innot at this stage be heard to question the lagalitr of the sole or her own liebility to uUe the refund. bhe proudly undertook this inextract quoted above. The material quest i on' ha s' refundable by her. In this regard, she should be grateful that the amount woe reduced to Sh 9,962/- and that the epondcnt bdictcd his right to coriplain. Tt is just riaiculous, for instonco, that a coffee trco was v'lued at Sn 10/- when a ~~~~~a~~ of coffee fetches just as much. The respcndent a a tiagnanimous litigant mdeod. In tho light of the -Wove, the opneai is c'isrussed. The apelltant will refund Sh 9,962/- as deteriinod by th lastrict court. She will isd repay the respon 1 entts costs of tiis op cal. The justico o± thc csc doe&not perr{t twenty rirnths of ron'ynont given by the primary court or two years 'atuitously ivcn by the District Court. The pellen's utteranCes did not call. for any alioarce of time.. She will repay the ntire5um within thirty (o) days from the date this jur 1 gment is ro"d to her. ior the reder YN avoidance of aoubt the subject of tion does not include any portis the respondent niht have disposed off before the instiiition of the suit. Mwanza K. S .K .LUKINC-IR 13 5.77 JtJDGE