Yeromino Athanase vs Mukamulani Benedicto [1985] TZHC 26 (28 September 1985)


Mwalusanya, J.: This is a dispute over clan land as to whether it had been sold to a stranger the appellant Yeronimo s/o Athanase or not; and if it had been sold whether the respondent Mukaulani d/o Benedicto who is clan member had the right to redeem it or not.  The shamba in dispute is worth about Shs. 2,000/=.  The Bukondo Primary Court C in a unanimous opinion decided that the respondent's deceased brother Laurent Mutore Bulaya had not sold the disputed piece of land to appellant as claimed and that the sale agreement dated 5/8/1970 purporting to effect the sale was a forgery.  The District Court agreed that evidence of sale of the shamba was indeed wanting and so the D appeal was dismissed.  With the help of learned counsel Mr. Rweyemamu the appellant has appealed to this court challenging the decision of the two courts below.
After a thorough review of the evidence on record, I am unable to resist the force of the E concurrent finding of the two courts below that there was no sale of that clan land.  Firstly, no near relative was informed of the sale including the respondent.  Although Richard claimed at the District Court that he was a clan member of the Muheta clan yet even if we were to so concede, he cannot be a near relative despite the wide definition given in para 557 of Cory and Hartnoll as he himself conceded that he could not F vouchsafe that he was a descendant of a common paternal ancestor in the male line.  Secondly, as the trial court observed, the sale agreement Exhibit A appears tampered with, the signature of the deceased appears retraced.  Thirdly, there was a contradiction between the appellant's testimony and that of his key witness Richard concerning the G amount of purchase price paid.  Richard said Shs. 1,000/= only was paid while the appellant insisted that he paid Shs. 6,150/=.  Fourthly if it is true that the appellant bought the land in question on 5/8/1970 why then did he not occupy it instead he waited till the death of the alleged vendor Laurent in 1977.  Fifthly, after sale according to para 935 of Cory and Hartnoll on Haya Customary Law, boundaries are to be marked.  But H in this case when the Primary Court visited the disputed piece of shamba on 12/6/1981 they could not see any boundary marks and the appellant failed to show the same despite the gallant efforts he  made.  Indeed the evidence in favour of the respondent was overwhelming.  No I

reasonable tribunal could have resisted the conclusion that there was no sale. A
At the District Court additional evidence was adduced apparently in last ditch efforts to establish that there was a sale. The appellant produced a new sale agreement Exhibit B which purported to show that Laurent sold the disputed piece of shamba to appellant in B 1975 for Shs. 1,000/=.  He also produced a specimen signature of Laurent as Exhibit C from a document of 1960 for comparison with the disputed signatures in Exhibit A and B.  The District Court ignored this new document of sale as useless and I cannot say it was wrong.  The change in strategy by the appellant was indeed mean and redolent of a lost battle if not the whole war. C
Assuming I am wrong such that there was a sale indeed, is respondent entitled to redeem the clan shamba?  Counsel for the appellant Mr. Rweyemamu submitted that the respondent could not redeem the clan land as she was time-barred.  He said that as per D para 568 of Cory and Hartnoll a redemption claim has to be filed within three months after hearing of the sale.  He said that as the sale was in 1975 as per Exhibit B and as this case was filed in 1980 then the action was out of time for some five years.  It was counsel's submission that the respondent must have known of the sale in 1975 or soon E thereafter as she was there in the village.
However according to the respondent she knew of the sale for the first time at the funeral of her deceased brother Laurent in 1977 when the appellant disclosed the alleged sale documents.  The matter was immediately referred to the Arbitration Tribunal which F appeared to decide in favour of the appellant and so the matter eventually ended in court.
On the evidence on record I find that there is no basis for the contention by the appellants' counsel Mr. Rweyemamu that the respondent knew of the sale in 1975.  No evidence whatsoever was led to establish that the respondent knew of the sale earlier G than the time of the funeral.  After all the appellant had not entered and occupied the shamba in question and so it cannot be said that she must have been alerted by the appearance of a trespasser to their clan land.  So in my judgment the respondent was not time-barred.  She took action within three months after she knew of the sale by referring the matter to the Arbitration Tribunal. H
Counsel for appellant took occasion to submit that the period of limitation for redemption of clan land was three months and not 12 years as some authorities tend to suggest.  He gave two reasons for his stand.  First, that if the 12 years limitation period was adopted it would cause stagnation of economic development as buyers would not I develop and invest in the land they bought during the 12 years for fear of it being

redeemed.  And he also said that speculative relatives of vendors would wait till the land A is developed then come up with a redemption claim.  And so he said that, that could not be good law at all.  In fact counsel was echoing the sentiments of  Mfalila J. in Luttataza Biteya v Haji Abdu Sulemani: [1975] L.R.T. no. 43 where he expressed the view that: B
   'To give security of tenure to buyers of clan shambas and facilitate the development of agricultural land, redemptions will only be allowed if applications to redeem are lodged within three months of the sale.  After this period, knowledge of the sale will readily be imputed to the intending redeemer, thereby effectively protecting buyers of clan shambas from possible C fraudulent speculative clan members'.
However my short answer to this point is that however laudable those sentiments are, I am unpersuaded that such policy considerations should be used to override clear D provisions of the law.  It is for the legislature to amend the law if it is found wanting.  As ministers of justice we are enjoined to administer the law as we find it.  And it is my considered view that the law on the subject is substantially clean and needs no exotic interpolation. E
Yet the protagonists for the three month limitation period have another string to their bow.  They argue that the decision of Evarister Martin v Apolinary Eustad [1968] H.C.D. n. 412 by Mustafa J. (as he then was) does not stand for the proposition that the limitation period for redemption of clan land is 12 years as, they submit, any observation to that effect was merely obiter dicta in that case involved the recovery of mortgaged F land and not redemption or recovery of land per se.  They concede that for the recovery of mortgaged land the limitation period is 12 years.  The protagonists attempt at what they consider the correct interpretation of Item 6 of Customary Law (Limitations of Proceedings) Rules G.N. 311 of 1964 which reads: G
   'Proceedings to recover possession of land or money secure on mortgaged land is 12 years'.
It is argued that the para should be read as referring to a suit to recover possession of H land or money both which have been secured on mortgaged land.  In other words the paragraph it is argued concerns two matters: first a suit to recover possession of land secured on mortgaged land and secondly a suit to recover possession of money secured on mortgaged land.  In the case of Mzee Madirisha v Rwamturaki Malagina; Mwanza I (PC) Civil Appeal No. 95 of 1970 (unreported) but cited in Fulgence

Seif v Raphael Rwabwera: [1978] L.R.T. n. 46 Mfalila J. had this to say: A
   'I am satisfied that while the right to recover mortgaged land the mortgagor is limited to 12 years: the right to redeem land from strangers by clan members other than the original B mortgagor or sellers is still subject to the customary law limitation period of three months from the time the clan member became aware of the alienation'.
However like Mustafa J. in Everister case (supra) and Kisanga J. (as he then was) in C Stephania Byabato v Francia Lwehabura & Another: [1974] L.R.T. n. 25 I read or interpret Item 6 of G.N. 311/1964 differently.  In my judgment I take it that the paragraph envisaged two kinds of actions: firstly a suit to recover possession of land and D secondly a suit to recover possession of money secured on mortgaged land.  That would appear to be the plain and natural meaning of that para on its plain construction.  If the rules envisaged limitation period for mortgaged land only as claimed, then it would have been a strange omission indeed because land disputes are quite prevalent in our varied customary law communities and no limitation period has been laid down by those E communities except perhaps the Haya Customary law.  It is absurd therefore to assign a negative intention to the law makers of 1964 rules that the alleged lacuna in the law was deliberate.  In the event the 1964 rules must be taken to have abrogated any earlier law on the subject and thus the 12 year period is the correct limitation period for F redemption of clan land.  And Bramble, J. in Abel Rwebogora v Raphael Mukaja: [1970] H.C.D. n. 100 holds the same view.
Counsel for appellant Mr. Rweyemamu further submitted that, as Hamlyn J. pointed out in Bi. Verdiana Kyabuje v Gregory Kyabuje: [1968] H.C.D. n. 499 it is wrong for the G courts to change the law from the three month limitation period for redemption of clan land to a 12 year limitation period.  While I associate myself with the views expressed by counsel and the late Judge Hamlyn, however I am unable to concur that the courts have changed the limitation period as contended.  It is a truism that the 1964 limitation rules H have been laid down by the legislature under section 65 the Magistrates' Court Act Cap. 537 and later reapplied by the legislature again vide s. 50 of the Law of Limitation Act No. 10 of 1971.  The courts are just interpreting the law and it can again be said that the duty and province of the courts is to say what the law is. On my part I heed and I appreciate what that English writer Francis Bacon once said in his Essays of Judicature that:

   'In the ordinary use of language it will hardly be contended that the decisions of courts A constitute laws.  They are, at most, only evidence of what the laws are and are not of themselves laws.  They are often re-examined, reversed and qualified by the courts themselves, whenever they are found to be either defective or ill - founded or otherwise incorrect'. B
With those observations I entirely agree.  I hope that adequately  disposes of Mr.  Rweyemamu's point as regards the role of the courts.
In the event the appeal is dismissed with costs. C
Appeal dismissed.


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