19710804 TZHC Mwanza2

7 cc c IN THL NION COURT OP TANZANIA AT ITNZA Appellate Jurisdic ti on (pa) CIVIL APiL NO.101 OR 1970 (roj: the :cisiôn àf the district court of Bukoba in Civil Appc1 No. 29 ob1969 be ore A. N. Ruseta Esq., District Lha4strae - Orihinal Civil Tea. No. of i of Ibvjnra Primary court). i.iIhALEIkIZA ..................... versus - Bi, ILLICIATA NDYIiJ • • • • • • • • , , , boNO 3Jr if NT KISANCA, Ag,J.. The ]espondent Feliciana Ndyerca originally sued the apaclla.nt Kup -*- Lwei1ciza and one Ragian iiclyema jon±iy to redeem a clan shesabaib±ch lie in: bad sold' to Liupira. The primary court at Ibeera in Bukoba District dis- allowed the claim bit on appeal the District Court reversed the cision of the lower cdurt and allowed Feliciaha to rededn the clan shat.:bo upon re±mding the purchose price end upon paying domponsaton for improvement: done to the hand by the appellent Mupira. Dissatisfied with chat decision. Mupira has nw appealed to this Court. On pE±usina the record of the District Court, it appear: that the appellant w4 agreeable that The respondent may redei the clan land and t].at the app llontl s only claire was for compensation for iLiiprovaLicllts doz C to tue land. The learned District Magistrate, thecfore, proceeded on tb: basis and it would seem that the course adopted by hisi Was proper. There was ample evidence that the suit shamba was clan ohamba and. tlz.:t it was aol without the knowledgc of the respondent who is a clan mother and that tha respondt becama aware of the sale she promptly took steps to redeem th ohanlba In those cirUmstahOe therefOre, the esondent van ciOTl7 entitled to r1 edecm the shafiba' In his manormeduja of appeal, the appellant suet - os th:t tho rocapo:b was not entitled to redeem the shaaiba because that sianriiba had Iron nit: cha. by a court orLer and tha.t a proclamation of salv was duly issued but the respondent did not pay the debt in respect of which the sha::b: nan site. It would seem that this e'gument is not relevant because the evidence clearly shows that the shsanba was sold not by the court but by Regina, tao rcspondmatts sistor Had the sale boon concluded by an agent of tho court, after the piod specified in the proclamation for sale had duly expired, then the position might be quite different. On thc evidence,. however, the sale was concluded not by the court but by Regina at a tins t;.ae esponden, her sister, was absent from the village, so that in those circumstances thc apiaell:nt' s contention-is without reerit and the responan: was rightly aliloned to redeem the shamba'. The le'ned District Magistrate held that on redeeming ii:: the rcsponden should refund to the appellant a.1O5/— being 'h:C purchase L price should also p .:650/ being compensation for ireprovceients done to the ehema by the appellant. The Distict liagistrate sited the ahmel:. n and ann the various improvements a d on the bas±s of that lao :aede the ordoi' for cmponsation asiollows: 92 bncna trees each at Se5,/ . a . a 22 ciieo irees.each at ,5/— i . a a . . • a Labour charges . a . .. . a . a . a a a a 70/- Total4 . At thL herii Of the appeal in the Di ribt Coüt alco the appdllaah stated that lao planted the banana and coffee trec n the slaaoba over a period exiening from August 1968 to Jy 1969 This itann that the appellant carried out the improvements after he becOme aware h.mt the title to the land was in dispute. Because the rcOôrd Ohdws 1at the proceedings in this case wero first instituted in court on 2.8.68 aff, tlra:e j ample ~ eviC once to show that the respondent instituted thesO ptbcecd.iugs promptly d ihin on raoth of her becong awce of the sale of bhe clnd land to the appellantI am of the that the appellant should not be allowed to recover compensation in respect of these improvements which he. carried out after bee oreing, aware that the title to the land was in disrute. I think that whore, as in 111his se, a person carries out improvements to theLaile., after he becomes awre that proedings have boon insituted to dispute the title to the land, 4en ho carries out such improvuuonts at his ova risk said ho must be deemod\ to be prepared to take the consecuencos fblloviing from the - dia?1xe. The brder of the District Court -for compensatioi in respect of improvents i thereforo set osidej In the i osult q the appeal is dismissod The respondent is entitled to redeem the sui1 shaaba on refunding the purchase price on1y. The appellant 0 should also p to the respondent the costs of the appeal in this Court ond in the District Court In order\ to save expenses the judgment is at the request of the parties, transmitted to the District Court at Bukoba which should summon the parties Pand deliver it to them. / (B. H. Kiswigo) 4/8/1971. Ag .JtJDGii I