19791206 TZHC Mwanza
There was no evidence that the shamba was clan property; even if it was, redemption requires refund of purchase price. The District Magistrate erred by setting aside the sale without ordering refund and by finding the shamba was clan property without evidence.
Source-derived case information.
- Citation
- 19791206 TZHC Mwanza
- Parties
- Appellant: Kokubo na Rwehabura; Appellant: Auleria Ruhararpil; Respondent: Jeremiah Kabyarwa
- Court
- TZHC
- Jurisdiction
- Tanzania
- Judgment Date
- 6 December 1979
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed; District Court decision set aside.
- Legal Topics
- Sale of Clan Land, Redemption of Property, Authority to Sell Clan Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kokubo na Rwehabura
Appellant
Auleria Ruhararpil
Appellant
Jeremiah Kabyarwa
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the shamba sold was clan property or personal property
- 2 Whether the sale was valid without clan consent
- 3 Whether redemption requires refund of purchase price
Ratio Decidendi
There was no evidence that the shamba was clan property; even if it was, redemption requires refund of purchase price. The District Magistrate erred by setting aside the sale without ordering refund and by finding the shamba was clan property without evidence.
Court Disposition
Appeal allowed; District Court decision set aside.
Orders
- Sale upheld as valid; respondent has no claim to redeem the shamba.
Full Case Text
Judgment text and source record
1 paragraphs
7, IN THE HIGH COURT OF TANZANI AT MWZA (PC) CIVIL APPEAL NO. 80 OF 1979 (Prom the d.cision of the DistrictCourt of Bukoba at Bukoba in Civil Appeal No. 102 of 1978) BEFORE. J. S . MWAMI SQ., SENIOR MAGISTRATE (Qriginal :Bukoba Urban Primary Court Crvil Case No. 54J78) KOKUBO NA RWEHABURA) APPELLANTS AULERIA RUHARARPL VERSUS JEREMIAH KABYARWA . . . . . . . . .. ... ... •.. .•.•. .•.•. . . .. .RESPONDENT JUDG'EMENT M'ALILA, J. 1' The re'spondentaued the appellants to?redeem the sbaba which he alleged had been unlawfully sold. by the 1st appellant to the 2nd appellant, in the séne'that being a clan shamba, it was sold without the consent of the clan'. in fact he did not so much as claim to redeem the shamba as to be given it free of 'charge saying that the 1st appellant the vendor should refund.'the' pdrchase price to the 2nd appellant the purchaser.' The.:1.$t, appellant agreed selling the shamba to the 2nd appeilant but she contended that it is her own, property to which th repondent has no claim. •he added, and in this was suiorted by a number of witné'saéS' that-she'old the ' shamba for hs. 12,000/=. The Primary Court, in particular the two assessors, clearly found on the evidence before them that the 1st appellant had not sold a clan shamba but her own shanaba which she was entitled to do and that therefore the respondent'had no basis to claim its redemption. They therefore dismissed the claim. However the Magistrate who completely misunderstood the gentlemen assessors thought that they ordered redemption as long as the respondent was willing to refund Shs. 12,000/= to the purchaser. I do not know where the Magistrate got this idea for the assessors were quite clear in their views that the 1st appellant had sold her own ahamba. Against this decision the respondent successfully appealed to the District Court where the Magistrate' found that the let appellant h.d sold clan shainba without authority and set aside the sale,, surprisingly without any order regarding'refund of purchase price. Firstly there was no evidence'showing that this was clan shamba, seôondiy'even if it was, the rule is whoever wants to redeem, must refund the purchase price and the value of all unexhausted improvements. The District Magistrate simply took away the shamba from the 2nd appellant. He allowed the appeal and set aside the sale. This appeal is against that decision.. Sf • 0 /2.