Court name
High Court of Tanzania

Erizeus Rutakubwa vs Jason Angero () [1985] TZHC 25 (28 September 1985);

Law report citations
1983 TLR 365 (TZHC)
Media neutral citation
[1985] TZHC 25

Mwalusanya, J.: The respondent Jason s/o Angero lost in the suit he filed at Nshamba B   Primary Court which was an action for redemption of clan land.  However on appeal to the Muleba District Court he was successful and he was allowed to redeem the clan land on payment of the purchase price of Shs. 2,500/=.  It is against that finding that appellant Erizeus Rutakubwa has appealed to this court and advocate Mr. Rweyemamu assisted him. C
It is common ground that the appellant Erizeus Rutakubwa bought the clan land in dispute on 29/9/1970 form the respondent's uncle Brasio s/o Kashongole who is now dead.  When the sale took place the respondent was away in Karagwe District preaching the Word of God.  The respondent returned home in June 1979.  It is said D   that as soon as he heard of the sale he referred the matter to the Arbitration Tribunal on 10/6/1980 where he was successful.  The Tribunal allowed him to redeem the land on payment of the purchase price of Shs. 2.500/= and an additional sum of Shs. 2,500/=.
There was also a dispute at the trial concerning the exact amount of purchase price that E   had been paid.  Respondent produced at the trial the relevant sale agreement (Exhibit A) showing Shs. 2,500/= as the purchase price.  However the purchaser (appellant) produced another sale agreement (Exhibit C) where it is indicated that the purchase price was Shs. 15,000/=. F
The Primary Court held that the respondent could not redeem the clan land as he was time - barred.  It held that the limitation period as per para 568 of Cory and Hartnoll on Haya Customary Law was three months since the intending redeemer knew of the sale.  And since the respondent knew of the sale when he returned home in June 1979, when G   he complained to the Arbitration Tribunal on 10/6/1980 he was late by nine months.  The case of Luttataza Biteya v Haji Abdul Selemani: [1975] L.R.T. n. 43 was cited by the Primary Court as authority for the proposition that the limitation period is three months.
The District Court held that the suit for the redemption of clan land was not time - barred H   as the limitation period is 12 years as per Customary Law (Limitation of Proceedings) Rules G.N. 311 of 1964 as saved by the Law of Limitation Act No. 10 of 1971.  As regards the two sale agreements the District Court held that Exhibit C. for Shs. 15,000/= was a forgery as it appeared tampered with.  So Exhibit A for Shs. 2,500/= was I   accepted as the genuine purchase price.

The respondent has argued that even if we take the limitation period to be three months, A   he was not late as he promptly complained to the Arbitration Tribunal on 10/6/80 as soon as he heard of the sale.  However the court record clearly shows that respondent testified that he knew of the sale as soon as he got hold of the will and the attached sale agreement when his uncle Brasio died in June 1979.  So by his own admission B   respondent knew of the sale in June 1979; and so he cannot be heard to say that he heard of the sale just before he complained to the Arbitration Tribunal in June 1980.  Definitely if we take the three months period as the correct limitation period, the respondent was clearly time-barred.
Now which is the correct limitation period for redemption of clan land?  Recently in two C   cases that is in Mwanza (PC) Civil Appeal No. 98/1982 of Felician Evarista v Domitina Kaijage and Anor (unreported) and Mwanza (PC) Civil Appeal No. 124 of 1982 of Adolph Lwegoshola v Domician Mulashani and Anor (unreported), I had occasion to comment on the raging controversy over the limitation period for redemption D   of clan land.  However in those two cases I had not the advantage of argument of learned counsel as was the case in this appeal where Mr. Rweyemamu greatly assisted this court by his incisive argument.  Foremost counsel assured me that the Tanzania Court of Appeal has yet to resolve the controversy. E
Mr. Rweyemamu and the other protagonists for a three month limitation period generally advance two main reasons for their case.  Firstly it is on policy considerations.  It is argued that a 12 year limitation period would be catastrophic.  They say it would bring economic stagnation for buyers of clan land as the buyers for some 12 years would sit F   back without developing the land for fear of it being redeemed.  And it is argued that some unscrupulous clever relatives of vendors would sit back for some 12 years to see development on the purchased land and then proceed to redeem it as clan land.  And it is said that in such cases claims of compensation for incomplete improvements would be G   for colossal sums indeed and very difficult to resolve as there would be very extensive developments.  Perhaps the best adherent to this theory Mfalila J. put the matter with admirable clarity in Luttataza Biteya v Haji Abdul Sulemani: [1975] L.R.T. n. 43 when he said: H
   '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 I

   buyers of clan shambas from possible fraudulent speculative clan members'. A
However my short answer to this point is that however laudable those sentiments are, I am of the settled view that policy considerations cannot be used to override clear provisions of the law.  It is for the legislature to amend the law if it is found wanting.  As B   ministers of justice we are enjoined to administer the law as we find it.  From the discussion below I think the law on this subject is substantially clear.
Yet the protagonists for a three month limitation period have another point in their C   armoury.  It is argued that the 12 years limitation period was laid down by the court in Everister v Apolinary Eustad[1968] H.C.D. n. 412 (Mustafa J. as he then was) under a false premise of the law.  It is said that after all that case dealt with a claim of mortgaged land and not sale of land.  Then the protagonists attempt what they consider to be the correct interpretation of Item 6 of Customary Law (Limitation of D Proceedings) Rule G.N. 311 of 1964 which reads:
   'Proceedings to recover possession of land or money secure on mortgaged land is 12 years' E
It is argued that the para should be read as referring to a suit to recover possession of land and money both which have been secured on mortgaged land.  In other words they say that the paragraph is for suits to recover possession of land which is secured on mortgaged land and for suits for recovery of money secured on mortgaged land.  In the F   case of Mzee s/o Madirisha v Rwamturaki Mulgina: Mwanza (PC) Civil Appeal No. 95 of 1970 (unreported) but cited in Fulgence Seif v Raphael Rwabwera [1978] L.R.T. n. 46, Mfalila J. stated:
   'I am satisfied that while the right to recover mortgaged land the mortgagor is limited to 12 G   years; the right to redeem land from strangers by clan members other than the original mortgagor or seller is still subject to the customary law limitation period of three months from the time the clan member became aware of the alienation'. H
However like Mustafa J. in Everister's case (supra) and Kisanga J. (as he then was) in Stephania Byabato v Francia Lwehabura & Anor: [1974] L.R.T. n. 25 I read or interpret Item 6 of G.N. 311 of 1964 differently.  In my judgment the paragraph I envisaged two kinds of actions.  Firstly as a suit for the recovery of possession of land and

secondly suits for the recovery of money secured on mortgaged land.  That would A appear to be the plain or natural meaning of that paragraph on its proper construction.  If that is not the correct construction it would be a strange omission indeed to have omitted prescription for limitation period for claims of land when it is known that land disputes are quite prevalent under every customary law community in our country.  And unlike the B Haya Customary Law which prior to 1964 had limitation periods for claims for land, other communities had none until the advent of the 1964 rules.  It is absurd I think to suggest that the makers of the 1964 rules had intended to exclude claims for the possession of land from the limitation period prescription. C
It follows therefore that the customary law period of limitation for redeeming clan shambas is 12 years as given by Customary Law (Limitation of Proceedings) Rules G.N. 311 of 1964 as reapplied by s. 50 of the Law of Limitation Act, 1971.  And Bramble J. in Abel Rwebogora v Raphael Mukaja: [1970] H.C.D. n. 100 holds the same view. D So the District Court correctly decided that the suit was not time - barred.
As regards the correct purchase price again I agree with the District Court that it is Shs. 2,500/= as shown in the sale agreement Exhibit A.  The other sale agreement Exhibit C E was obviously tempered with to read Shs. 15,000/= instead of the original price of Shs. 2,500/=.  Moreover, it bore no signatures of witnesses nor that of the buyer.  Obviously it was not genuine and it was rightly rejected.  So the respondent is allowed to redeem the clan land within three months from today on payment of the purchase price F of Shs.2500/=  The appeal is accordingly dismissed with costs.
G Appeal dismissed.

A