19741010 TZHC Mwanza

TIGIi cur o TANZNI H' u, TiNZA a I APPELi.Tl' JURISDICTION (pc) C:VILPPFIL NO.. 95 OP 1970 (From the decisidn of theDistiict Couxt of Bukoba at Buizoba Civil Appeal No. 63 of 1970: Before J. L. Mboneloo, Esq, District Magierete and Muleba Primary. Court Civil Case No. 10 of 1970). MZXE . . , . . . . • . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . S. ...APPELLjNT versus RiLNTtJRPKI MULJGIRW.A.. . a. a a • • • • a a a •• j . • a .. a • a • • • a•so a ...........a . 0 .0.9RLSPONDF1iT JGM1NT MFLILA, J..: :Th the Primary Court of. Bukoba distric.t at Mulcb.a, the respondeirt RWAMTURII IULGIR:iJi filed an action. against ho appellant MZLL s/o IuDIR3:sH alias ah.urn Iss claiming tb redeem clan land iy'r paying the appcl1ant the balance f she. 150/=. The learned Primary Court Magistrate dimissod the action a rs judicata. The respondent successfully appealed to the district court riheo it was held that his right to redeem was still intact as the period of l:Lnütation was 12 years and that to action was not res—judicate because ti_ic ..'cspondcnt was not a party to the procec4ings in nleba Primair Court CELvil Casxj 1'jo. .121 of 1969 which subsequ::ntly rpachcd - 41s Court a (pc) CivLl ihpp al No. .58.of 1967. The appellant then appealed to this Court against the or.dr of the district court allowing the: respondent to rcdocm -the land upoh his pcyng the balance of ths. 350/=. During the hearing of this appeal, ,Mir. Rugarabumu uho appeared for the appellant subrnitok two arguknonts in support of his appeal. He asked this Court to uphold the fihding of tliG Primary court that this action by the respondent was res—jud.ca6e. Ho said ilic"it the appcl-tt Lad previois1y sued i_ipon t us same snamba ,na Mbchdgc.. and Llis in Mcicbe Pr Ler Court Civil Ca iTo, 121/66 which 1aachGd this Court (Pc) Civil hppee.l No. 58/67, and that by the judgmcrit of t. is Court, Elias was allowod to redeem thiB shamba on condibion tht :jc paid ihs,. 150/= to the appelant. . In those cicumstanccs, Mr. Rugraiamu submitted, since Elis fe i1d to redeem the shamba and it must be kCn that he was sued as a clan member, no other clan member can institute proceedings in ra,spact of the same shreiiia .nd as the respondent is related o Zlias, he cannot for the above iaaen sue to redeem this same shmba - thq mttcr is rcs—judicata as regards the whole clan. His second arguiInt 1JCS based oi limitation. H i3ubmittcd 7 without citing either the law or the autu!orities that the time to Tdcom this shamba has passed. Mr. Matcrnbe who apearcd for the respondent suppori.d th: findings and judgriont of the distri t court. He also answered Mr. Rugarabamu's two argumonts on res—judic ta and limitation of action. : .. On ics judicata Mr. Matcrnba submithed that the act on of one clan mambcr chnbt bc attributed to the clan nlea thc othci' .m:jnbe s agreed to be affcctcd thereby. In hc circumtóflccs hc ôtibn of L?lias we e personal to hun, Ond cannot be us'd to dcfc&tthc right Ô± other clan mc b;rs to redeem tiic. 1en. !s to limitation, it was Mr. Metcrab's submissi ii hat the right to odecrn clan land is not governed by any lirnitationof t rno . I do iot think t is possible to deal , adequately with the question whether oi not this ma ter is res—judicata without setting out in full the cntibadkound to t. a prcent case. appears that a doctmt:nt -dated 29th January1961, one Mbckcnga, whom I tkn to be thc rn: as Abas Miagirwa nacd by the respondent in the present proceedings,, p dgcd this shamba to the present appcllant .fo ds. 6001= and it was condition f the-pledge that if the money wa oi ret med the shamba should be the a dliant's. , The money was not paid, o. that bye document datcd 8th Januery 1964 [bekcna transferred the amba to tiç appellant and he tcr confirmed the pellant's right to this s ha rp b .a b:forc a number of witnesses,. But this ±_i withstanding Mbekcngccrnharkcd on wiat could only have been frauduiont sales this same shembe tovariou buyrs. rp1_iesc wore Flies, Daucla nd Karai_ii4. Mbc n purpored to p0cc own'- rship of parts cf this ehamba - : •'.• . .- .. -. .,- - .,. reported in 198 H. that the period applicabi.., is th twelve "car period under the. 1964 Ru.Las, and uiot the three month p r:Lod und r th customary laws of the Wa1iaye h. r: era numerous other decisions of this Court to the same effect. Howovc.r aftr considering this point at length end the possible consequences of thes authorities on the policy of ldnd devlopnint in Bukobe, which is an important agricultural •rca in th country, I hay been uifotunet in arriving at a conclusion which is not in harmony with tIer previous decisions of this Couit. I should prheibs tnrt by saying' this, thet thrc snould Oc no confusion between th right to dr rn elan lend from third partirs, and the right of mortgagors or thos: 110 in any other way pledge lend as s cui'ity for a sum of money lent, to rccove pc;ssessicn of such land. The right to rciocm clan land from non—clan members is designed to he: p clan land within th clan, and I am sure it is clear that SUCÜ po-tcc -tion in the peculiar circumstances of Bukoba district is important h. O.eUS by pledging, mortgaging or süling land to non clan mmbcrs, the mor gagor or the sclL'r h a s dernonstret d his indiffcrencc to retain the land wij hin th: clan. The other clan memb. rs ther fore rush to its I rescue. In contrast the right of 'thc mortgagor to recover possession of the lanI h: mortgaged from the mortgagee has nothing to do with clan interests, it is a direct dling btwccn tw. individuals. Therefore Item 6 of the. Schedu1 1 tc. the. 1964 Rules was design: d to prot ct tl'ic rights of mortgagors to rrco. r aortgag.d land, from mortgagccs, and the period in which this right cndu ci as st a 12 years. But I do not think this was nt to covr third art..s who in good faith acquire clan land. It would be very unjust if a can in e m i r ware to b. allowed to r de.rn such lend aftor say el von years. Ths would makc transactions in clan land highly risky with the attendant stifflihg ci' initietiv" to develop it. The risk is ver y real for one can n vex' be 1sur when some clan mcmb x' will suddenly app. ar and stak his claim to redeem the lend from the "strangcr. This would also crcatc fertile ground for freuduirrrt speculators. For these reasons I am satisfied that whil the right to r covtl r mortgaged land by the mortgagor is limited within twclve years, the :cight to redeem clan land from stran(;rs by clan members' other than the original mortgagor or sell'r, is still subj ,,ct to the customary limitation priod of 3 months from th tim th. clan mmbcr became aware of the a1ianaton. In the pras(t case the alienation of this land took place in 1964 whan the original mortgagor finally gave th shmbo to the appellante LS to when h: became ewarc of this disposition, the respondent told tho Primary Court tht ho was r wqr e all along but for lack of funds he could not institute these rdcmption proe dings earlier. He did so in 1970, almost six Tars rtex' the final alienation tr; the appellant, by the original mortgagor. Ho - .s thcrcforo clear1 out of time and his lack of m enS to r deem the land, crlicr cannot be uz':d as a basis for disturbing thc appellant from the lend on which h hs been in peaceful occupation for the last 13 years if the original dtc of the mortg-eg.. is taken into account eCs January 1961. For all the f rcgr;ing rcaccns, I find that the r spend nt's action to edoem this clan sha was time—barred and that it ohoJ.d have been dismissed 41 that basis, hcc rdingly this appeal is ellow:d, the judgment and odcrs ofthe District Cou h ar: set aside, and for different reasons thc judgment of the Primary Court dismissing the respondent's claim is r stored. The ppcl1ant will also avG costs of this appeal as well as thee of the courts below. Dcli-vcrcd, in Cotut at Mwanza this 10th day of Octob r, 1974. MWj'NZJ L. NFi'LILP 10th October, 1974 * JUDGE,_. -