19770922 TZHC Mwanza

IN THE HIGB C OURT OF TANZANIA ft C

AT MWANZA (nc) CIVIL APPEAL t6 238 OV 15 (From the deis•jon of the District Court of ttikoba D.strict at BUkobá in Civil Appeal Nbi 164 Of 1974 Before JS.Mani; E; - District Maitrate - d Or±ginal Muleba PrithaP,jr Court Civil Case No 14 of 1974) R âM.aD1'LN ISSA. ........... ..................S4..JP'ELLANT . versUs C OS]3ERT RVI.INJLO. . ......... ............ .RESP'TD JUDGI5 WiNGIR, J. One wan, Mukabahuma Xirnondo, purported to - sell a'claI sharaba to the Sboellant, Ramadhan Issa, on 6 Deceiber 196.. This sale, if ever it took place, seers to have beensat upon for the appl1axt did not assert his right until 1972. In fact, when Mukabahthfla died she ourported to bequeath the game shba to her daughter, One Angelina Kab'alengelaki. Thi ' s& prOnted Mukabghuma' s sister, Bashemela himondo, to sUe Angelina in Muleba Civil Case No. 381171. She was sUocosful and iingelin4uc'cessfully apoe'].ed to the distriot court in Civi 1Lppal N1L7, It was held that she could not inherit . a shamba on her maternal side and the shamba was vested in Bashemeia It was ithme'diate'iy after this that the apellant laid A claim to the shamba alleging to have pUrchased it from Iukabahumao Bashenla then commenced acti on that has c'ulmin.at ed in the pre sent appeal. Un- f't.unately, she died before the case Was decided by the primary court and th respondent Gosber.t Rwarnpulo j . her nephew, was' permitted to con- t'inue the litIgation. The primary court allowed the action but ordered the respo&ent to refund Sh 4000/- i.iølusi/e of the purchase priOo and .ormersatIon Pot irrovements. The repondent appealed to the district court agint •thi order.. The latter cour allowed the appeal relying on' the decision' of this court in v. Kiianpa HCD li.

185. It held that nothing was refundable, ezcett f or the iirotements, as the sale waS .voido The appellant ap'ealed agaiiist that j.dgement'. 1 concur with the decision of the district coUrto If etoi''MU1c b&huma sold the shba she had no legal right to do so and nO title passed to the aP ip ellanto In that event the'esPOdent canno be c'alled upofl to rfUztd the }?urchase price for the shemba never pa&ed out of. the clan it is also doubtful whet'hei any sale took place for it is inconceivable that the Ilant could sit' on his rights f i~ om, 1966 to 1972'.. This 'is to say nothing about the purported agreement' of 'sale which, ii 'have' noted, d oed' not bear' the signathres of' the witnesses named theroin., 'The, appeal is tho ftforz,, dismis s ed ad' the jidgeriont of' the d. strict Oourt upheld. Howevej the respondent do'i not have to pty OOmp'ensatiofl for the hut in the shinba for it was erOtein the sde atthosphere illegality. The appellat should look tlo'evo is:liable 'not Ba'shomel'as legal representative as e rOncouly ordered b the dIstz'Ot magistrit.e to make good any clai'm that' hO May consider himself entItled to., There will be no ordr 'for costa of this appeal as the r'spondent did not appoar, (A Mwanza:' K.S.KLJKINGIRA, 22.9:.77. JUDGI'.