Leonance Mutalindwa vs Mariadina Edward [1987] TZHC 23 (10 August 1987)


Katiti, J.:Bi Mariadina Sindano Edward, the lone child to her father, and belonging to the "ABANU" clan, inherited her deceased father's shamba, upon her father's death; to which he succumbed in 1965.  She unfortunately also lost her mother, and subsequently fell seriously sick, and devoid of any kind of assistance, from any quarter including  F her clanmates, she sought her clanmates to buy her shamba, in vain, each saying, he or she, had no money.  She finally came upon Mohamed Abdallah, the 2nd respondent in the lower Courts, to whom she offered, and who accepted to buy  G her shamba, with the sanction of clan-members, at a mutually agreed amount of Shs.48,000/=, (forty eight thousand only).
The document of sale dated 20/1/77 that was among others signed by six clan members, inter alia, reads as follows:- H
   Tumekubaliana sote wawili pamoja na wanaukoo kuweka sahihi zetu, hapa chini, mbele ya mashahidi wetu wanaohusika. I
   Mashahidi, hawa wote ambao wameweka sahihi zao katika

A    hati hii ya mauziano hapa chini, ndio wale, niliokabidhiwa na baba yangu marehemu, na ndio, wenye uwezo wowote ule kulalamikia, shamba hili na nyumba kama ningeuza bila taarifa yeyote, au bila kuniruhusu, na kunikubalia.
B Sahihi ya Dina Sindano
Sahihi ya Mohamed Abdallah(mnunuzi).
C    (1)   Teonest Butakili (D.W.3)
   (2)   Tiriphone Alex
   (3)   Gilioni William
   (4)   Serapioni William
   (5)   Joakimu Ale
D    (6)   Ladka
   (7)   Bonifaci Leonard
   (8)   Phill Mwiiba
On 7/3/83, vide Muhutwe Primary Court civil case No. 13/1983, the appellant Leonce Mutalindwa, filed this case  E against, Bi. Mariadina Sindano Edward, and Mohamed Abdallah, then first and second respondents respectively, complaining that the former sold and the latter bought clan land without clan sanction, arguing further here and before this   F Court that Bi. Mariadina Sindano Edward had no right to sell clan land, but to only enjoy the usufruct of the same in her life time.
The Primary Court unanimously held against the appellant.  What is particularly intriguing, are the assessors opinions, which I quote hereunder for posterity to easily appreciate.  The first assessor Simon Chememe, inter alia, but importantly said:- G
   Alipofariki marehemu Mr. Edward Sindano 1965, P.W.1, na P.W. 3 hawakuweza kushughulikia ugonjwa wa D.W.1, walimwacha na alishughulikiwa na Ndugu wanaukoo (wengine), waliojirani na shamba hili. H
   Jambo moja la kujiuliza ni je, ni kweli huyu D.W. 1 ugonjwa wake, unaeleweka kwa wanaukoo wake wa "ABANU"?  Jibu linajibiwa, na barua kielelezo "A", iliyotolewa na D.W.2, kuwekewa na wanaukoo (5) watano, kumwidhinisha D.W. 1 auze shamba hili kwa I shida ya ugonjwa ....

A    Hivyo mimi naona muda wa miaka saba tangu D.W.2 anunue shamba hili, mdai mwenyewe aliweza kuelewa dhahiri, na fedha zote Shs.73,000/=, alizotumia D.W.2, zinaweza kuleteleza, shida ya maendeleo, hivyo ni yeye mdai aliyeghahili, na kupoteza shamba hili.  Hivyo mdai D.W.1 ameshindwa na wadaiwa wote wawili wameshinda, shamba liendelee kuwa ni mali ya mdaiwa B No. 2.
The second assessor Bi. Rugenia's opinion was concurrently on the same line.  The apellant's appeal to the District Court, did not meet any fortune, as the case, or appeal, was dismissed on the grounds (1) that the appellant's action,   C after seven years had been time barred, and (2) that the clan had the competence to sanction the sale and hence the appeal to this Court.
On appeal before this Court, the respondent was represented by a Bukoba based advocate Mr. Rweyemamu, who tried   D to pound home and support the lower Court's verdicts based first on time limitation.  Mr. Rweyemamu further submitted that the female disability in disposing of clan land is overriden and yields to the ultimate authority of the clan in which clan land title is ultimately vested, to even authorize a female to sell clan land, if there are compelling reasons.  The  E appellant on the other hand was not sloth to repeat the biblical time traded biased concept hence crystallised into, para 20 of the Customary Law Declaration G.N. 536 of 20/4/1963, that the 1st respondent, a female was not competent to dispose of clan land by sale.  I have, on my part enjoined as I am, considered the issues in this case.  Discernibly and with  F the assistance of the Primary Court assessors' opinion, I am verily satisfied, that the issues involved are (1) whether a female has legal competence to dispose of clan-shamba, (2) whether the clan may legally and competently sanction a female inheritor to dispose of the clan shamba so inherited, and (3) whether the appellant was time barred. G
The first issue, whether a female has legal competence to dispose of clan land, is to both professional and lay members of this zone, susceptible to easy answer, an answer that is particularly attractive, covetously and jealously guarded by   H chauvinistic males, but the envy of females from Kagera Region.  The answer as expected is that para 20 of the Customary Law Declaration G.N. 536, does operate to deprive the first respondent a female the power to sell clan land.  The first issue is therefore answered positively.  But I would like to add, may be in passing, that at any one time, we may  I have bad as well as good law, and I venture to say, without

  A qualms, that this piece of customary law is bad, it discriminates against women, encourages expansionist greed on the part of males against female relatives, and deprives females, important resources for self-assistance, when as in this case, they are in serious trouble, while like wild birds of prey, men, greedily look on, or however, either for the woman to   B expire, or die, or abandon that shamba, - in this case, this ugly position is with clarity put by the appellant's witness, P.W.4 thus:
   Hasa kusudi letu kubwa mlitaka D.W.2 awarudishie shamba hili, bila ninyi kumrudishia fedha Czake. C
So much for the ugly aspects, but what is encouraging is that the grave for the same is being dug, for the contemptuous burial of the same for the sake of equality, when the Fifth Constitutional Amendment 1984, takes its rightful place, in  D 1988.
The second issue is, whether the clan members may legally and competently sanction a female shamba inheriter, to dispose of, or sell the clan shamba.  In the perspective of things, it seems to me, that under customary law, obtaining in  E the area the case hails from, the parlance clan shamba, should mean, that title in clan land in that Customary Law sense, is generally vested in the clan.  Since such title is so vested, the said clan may sanction, individual clan mates, to dispose of the clan-land, or even for good cause, refuse to so sanction.  It has never been contentiously debated, that, a female is not as much a member of any clan, as any male.  And if the ultimate authority for sanctioning sale of clan property, is  F vested in the clan, and I am sure it is, it does not seem to me, that, the exercise of such power, is subject to any sex qualification - discriminating against women.  For good cause, such sanction will or should ordinarily be given to males, as well as females.  I would in the circumstances answer the issue, that, since the clan has the title vested in it, and can  G sanction sale, of clan property, such sanction can be given to both male and females.  In this case, the clan as Exhibit A, shows and as the assessors' opined, sanctioned for good reasons, the first respondent, to sell the clan shamba.  As the appellant alone does not constitute his clan, his objection cannot override the clan as a whole.  It is my view, that a clan  H may legally and competently allow and sanction its female clanmates to sell clan property, and in this case it did, and I cannot impute illegality, or absence of jurisdiction thereto.  It is my confident view, that the shamba was legally and  I competently sold, there is no question of

  A sex discrimination, nor is it judicious to let a single ill-motivated person with a get it free mentality to override the majority.  As it was held in the case of Leopold Bakubezi v Gordian Ikwabu (1953) App. No. 12/1953, (unreported), Central Court of Appeal Digest No. 58, a woman lawfully in possession of clan land shamba, as was the respondent in   B this case, subject to normal conditions governing such sales, like clan authority is entitled to sell clan land.  I would and hereby answer the 2nd issue positively, and the appellant cannot be heard seeking to over-ride clan authority.
Casting nets wider, and without prejudice to the conclusions above, we have the third issue of limitation.  It is common  C ground that while the shamba was sold in January 1977, and while as per the evidence of P.W.4, three years thereafter, reconciliation between the appellant and the buyer in respect of the said shamba failed the appellant filed an action resultant in this appeal, seven years later, when admittedly the buyer had effected improvement worth Shs.73,000/=.  As  D aforesaid, the question is whether without prejudice to the conclusion that the clan was competent to sanction the sale, and so did rightly the appellant was otherwise time-barred.  The issue of time limitation within which to nullify the sale of clan land or redeem the same, I must confess, has over a period of time undergone serious Judicial vicissitudes - three  E sets of different views -(1) the three customary months limitation period, as from the date of knowledge of sale, as per Cory and Hartnoll - Haya Customary Law, before the promulgation of the Magistrates Courts Act 1963 to be referred to as the Act, see Shumbusho v Nyamwiza d/o Magayane (1954) App. No. 21/1954 Central Court of Appeal, and  F (2), after the Act above, same three months limitation period, was canvassed in Pancras Elias v Gratian Pancras [1968] H.C.D. No. 411 in which Seaton, J. as he then was, was influenced by the holding in the case of Garasiani  G Kaberu Murefu and Farijala Katemara v Bushaija, in which it was held that, the Courts should always demand:
   strict proof of all the conditions enabling a relative to nullify the sale of clan land and should apply these conditions equally strictly H since to do otherwise would strictly all initiative and enterprise on the part of a purchaser of a clan-land.
Again in the case of Mzee Madrisa v Rwanturaki Mulagirwa[1977] L.R.T. No. 57, it was held that the limitation  I period remained the Customary one of three months - that  begins to run as from the

  A time the intending redeemer, or sale nullifier becomes aware of the sale.  The reasons given for the holding, are in my view sound, consonant and consistent with, not only the developmental speed, that is at this juncture advocated but also with what has hitherto been the customary law on the aspect.  The solidification of the hitherto customary law on the   B aspect into three months was development oriented, well and rightly conceived by those forefathers, and it is my view, that holding land for twelve years, being dogged and nagged by the fear that the shamba would be redeemed or the sale nullified, would be a negation to fast land development. C
The second view, - the twelve years limitation period, is held in Evarister Martin v Apolinary Eustad and Tefunwa Tibishubwamu [1968] H.C.D. 412 and Abel Rwebogora v Raphael Mukaja [1970] H.C.D. 100 that severally with the advent of the Customary Law (Limitation of Proceedings) Rules 1963 under the Magistrates Courts Act, 1963  D G.N. 311 of 1964, that construed that item 6 in the schedule reading "proceedings to recover possession of land, or money secured on mortgaged land - 12 - years", - meant that the period of limitation for setting aside an alienation of   E land, which includes sale nullification and redemption, was extended to twelve years.  The above view has found attraction in a number of cases if not many.
But it all seems to me, that the construction that advocates twelve years limitation period, particularly after, the Magistrates Court Act, 1963, and the attendant Customary Law (Limitations of Proceedings Rules, does I think,  F emanate from the construction of the wording, - proceedings to recover possession of Land, or money secured on mortgaged ... 12 years".  It is my submission that, relevantly applicable here, is the first leg of the wording - "to recover possession of land."  If this phrase, is intended to mean, to re-acquire to enter into land, and exercise physical possession,  G over the land sought, by the party to the proceedings, then, the nullifier of sale of, or redeemer of clan land, does not unfortunately, fall into the acquisitive embrace of the above phrase - for the following reasons - first, because the said   Hnullifier, redeemer does not necessarily become the owner of the shamba redeemed, nor physically enter into possession of the shamba, and it may not even fall into his possession at all, if the redeem/purchase price is paid to him by, any clan member immediately, and second, he acts on behalf of the clan, and the original owner may get the said land by refunding  I the redeemer, or sale nullifier by refunding the sum to the latter, without

  A the party to the proceedings getting into possession.  What seems to be the case, is that the redeemer or sale nullifier brings the clan land back into the control of the clan, without necessarily personally taking possession.  It would therefore seem to me, that while the individual clan member may be said to be in possession of clan land he/she is occupying and may be he or she has sold the same, and hence the question of redemption or sale nullification, the clan in general can  B only be said to be in control of clan land.  And since the redeemer or sale nullifier of clan land all he does is to bring back the clan-land into the fold of the clan, and does plead the interest of the clan, and therefore acts for the clan, he cannot be   C said to be recovering possession, of the said clan land, because such land never necessarily falls into his possession.  It would therefore seem to me, that an action for redemption, or nullification of sale of clan land, is an action less for possession of, than the control of the same by the clan, I would for reason thereof, hold that the three months limitation   D period, was never affected by Customary Law (Limitation of Proceedings) Rules, and the appellant was therefore time barred.  Further under rule 5 of the Customary Law (Limitation of proceedings rules) the test of "unwarrantable delay", would apply to qualify the appellant as time barred.  It seems to me, that, in either case, seven years delay in bringing this  E action, the appellant was hopelessly time barred.
I would in finality conclude, that the severalty of one clan - sanction to sell, two, time limitation, or the accumulative effect thereof urge the dismissal of the appeal, and it is accordingly, with costs. F
Appeal dismissed


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