Court name
High Court of Tanzania

Malekela Mahita vs Kibuwi Nzengwa () [1989] TZHC 24 (30 June 1989);

Law report citations
1989 TLR 113 (TZHC)
Media neutral citation
[1989] TZHC 24
Coram
Kyando, J.

Kyando, J.: The appellant's uncle, Dilunganika Mwanamvuvulu, allegedly mortgaged his 12 shambas to the respondent's uncle Kibuwi bin Mbukwa for three goats, a pair of F "amarekani" pieces of cloth a measure (pishi) of salt and a cock. This was when the appellant was only a baby; he is 76 years now. The respondent is 109 years and he says he has been using the shambas since he was a young man, upon the death of his uncle G Kibuwi bin Mbukwa, from whom he inherited them. His position is that appellant's uncle sold the shambas to his (respondent's) uncle and it is not that he mortgaged them as contended by the appellant. The appellant filed a suit in the Primary Court at Tawa, Morogoro District, seeking to redeem the shambas from the respondent. He succeeded, H and the respondent appealed. On 8/9/88 Shillogila PDM on appeal reversed the decision of the Primary Court holding that there had been no mortgage arrangement as contended or alleged by the appellant and that even if there had been one the period for redeeming the shambas has elapsed. The appellant now appeals to this court against the I decision of learned Principal District Magistrate.

In the first place I accept that the arrangement pleaded by the appellant was a mortgage A transaction. The Law of Limitation Act, l97l, defines a "Mortgage" as including, where customary law applies, as in this case, any arrangement under customary law which has similar effect and incidents as a mortgage. This, as I have said, was such an arrangement B between appellant's and respondent's deceased uncles. Under the first schedule to the Law of Limitation Act, Part I, a suit to redeem land and possession of a mortgagee must be brought within twelve years. And under s.3(1) of this same Act, every proceeding for which a period of limitation has been provided in the First Schedule to the Act and which C is instituted after the prescribed period of limitation "shall be dismissed whether or not limitation has been set up as a defence."
The shambas in the instant case were mortgaged many years ago, when, as I have said already, the appellant, was on his own admission, only a baby and he is 76 years old now. He did not even witness the transaction and as the learned Principal District D Magistrate in the Court below rightly observed, he had been only informed about it by others. His attempts to redeem the shambas now are, as far as the law is concerned, therefore, hopeless as he is barred by limitation. E
The redemption should have been done within twelve years of his uncle mortgaging the shamba's to the respondent's uncle. That this was not done within these years the appellant's rights to the shambas, have been extinguished-under the provisions of s.39 of the Law of Limitation Act, 1971. Like the learned Principal District Magistrate therefore, F I have to hold for the respondent and dismiss, as I hereby do, the appellant's appeal to this Court, with costs. The shambas are to remain the legitimate property of the respondent.
G Order accordingly.

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